2011 Federal Register, 76 FR 45054; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 144 (Wednesday, July 27, 2011)

[Federal Register Volume 76, Number 144 (Wednesday, July 27, 2011)]
[Rules and Regulations]
[Pages 45054-45075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18429]

[[Page 45053]]

Vol. 76

Wednesday,

No. 144

July 27, 2011

Part III

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Ipomopsis polyantha (Pagosa Skyrocket) and
Threatened Status for Penstemon debilis (Parachute Beardtongue) and
Phacelia submutica (DeBeque Phacelia); Final Rule

Federal Register / Vol. 76 , No. 144 / Wednesday, July 27, 2011 /
Rules and Regulations

[[Page 45054]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2010-0015; MO 92210-0-0008 B2]
RIN 1018--AV83

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered status for Ipomopsis polyantha (Pagosa skyrocket), a plant
species in Archuleta County, Colorado; threatened status for Penstemon
debilis (Parachute beardtongue) in Garfield County, Colorado; and
threatened status for Phacelia submutica (DeBeque phacelia) in Mesa and
Garfield Counties, Colorado, under the Endangered Species Act of 1973,
as amended (Act). Designation of critical habitat for the three species
is proposed concurrently in a separate rule in this edition of the
Federal Register.

DATES: This rule becomes effective on August 26, 2011.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials received, as well as
supporting documentation used in preparing this final rule are
available for public inspection, by appointment, during normal business
hours, at U.S. Fish and Wildlife Service, Western Colorado Ecological
Services Field Office, 764 Horizon Drive, Building B, Grand Junction,
CO 81506-3946; telephone 970-243-2778; facsimile 970-245-6933.

FOR FURTHER INFORMATION CONTACT: Al Pfister, Western Colorado
Supervisor, U.S. Fish and Wildlife Service, Ecological Services Field
Office, 764 Horizon Drive, Building B, Grand Junction, CO 81506-3946;
telephone 970-243-2778, extension 29; facsimile 970-245-6933. If you
use a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

Ipomopsis polyantha

We first identified Ipomopsis polyantha as a taxon under review in
the 1983 Supplement to Review of Plant Taxa for Listing as Endangered
or Threatened Species (48 FR 53640, November 28, 1983). In that
document, we included the species as a Category 2 candidate, based on
our evaluation at that time. We published our decision to discontinue
candidate categories and to restrict candidate status to those taxa for
which we had sufficient information to support issuance of a proposed
rule on December 5, 1996 (61 FR 64481). This resulted in the deletion
of Ipomopsis polyantha from the list of candidate taxa for listing. We
added the species to the list of candidates again in the 2005 Candidate
Notice of Review (CNOR) (70 FR 24870, May 11, 2005) with a listing
priority number (LPN) of 2. A listing priority of 2 reflects threats
that are imminent and high in magnitude, as well as the taxonomic
classification of I. polyantha as a full species. We published a
complete description of our listing priority system in the Federal
Register (48 FR 43098, September 21, 1983).
On June 23, 2010, we proposed to list Ipomopsis polyantha as
endangered (75 FR 35721). In the proposed rule, we found that critical
habitat for the species was prudent, but not determinable at that time.
A proposed rule to designate critical habitat for this species is being
published concurrently with this final rule.

Penstemon debilis

We first included Penstemon debilis as a category 2 candidate
species in the February 21, 1990, Review of Plant Taxa for Listing as
Endangered or Threatened Species (55 FR 6184). When we abandoned the
use of numerical category designations in 1996, we changed the status
of P. debilis to a candidate under the current definition. We published
four CNOR lists between 1996 and 2004, and P. debilis remained a
candidate species with an LPN of 5 on each (62 FR 49398, September 19,
1997; 64 FR 57534, October 25, 1999; 66 FR 54808, October 30, 2001; 67
FR 40657, June 13, 2002). An LPN of 5 is assigned to species with non-
imminent threats of a high magnitude.
In the 2005 CNOR (70 FR 24870, May 11, 2005), we changed the LPN
for Penstemon debilis from 5 to 2 based on an increase in the intensity
of energy exploration along the Roan Plateau escarpment, making the
threats to the species imminent. The CNOR lists published in 2006,
2007, and 2008 maintained P. debilis as a candidate species with an LPN
of 2 (71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007;
73 FR 75176, December 10, 2008).
In each assessment since its recognition as a candidate species in
1996, we determined that publication of a proposed rule to list the
species was precluded by our work on higher priority listing actions.
In 2008, we received funding to initiate the proposal to list Penstemon
debilis. In the 2008 notice, we announced that we had not updated our
assessment for this species, as we were developing a proposed listing
rule (73 FR 75227). On June 23, 2010, we proposed to list P. debilis as
threatened (75 FR 35721). In the proposed rule, we found that critical
habitat for the species was prudent, but not determinable at that time.
A proposed rule to designate critical habitat for this species is being
published concurrently with this final rule.

Phacelia submutica

We included Phacelia submutica as a category 1 candidate species in
the 1980 Review of Plant Taxa for Listing as Endangered or Threatened
Species (45 FR 82480, December 15, 1980). In that notice, category 1
candidates were defined as species for which the Service had
``sufficient information on hand to support the biological
appropriateness of their being listed as Endangered or Threatened
species.'' We changed the candidate status of P. submutica to category
2 on November 28, 1983 (48 FR 53640). On February 21, 1990, we again
identified P. submutica as a category 1 candidate species (55 FR 6184).
In the February 28, 1996, Federal Register (61 FR 7596), all category 1
candidate species became candidates under the current definition. We
assigned P. submutica an LPN of 11. In the 2005 CNOR (70 FR 24870, May
11, 2005) we raised the LPN to 8, to reflect the increasing level of
threats, which were imminent and of moderate magnitude.
On May 11, 2004, we received a petition from the Center for
Biological Diversity (CBD) to list, as endangered, 225 species we
previously had identified as candidates for listing, including Phacelia
submutica (CBD 2004, p. 146). Under requirements in section 4(b)(3)(B)
of the Act (16 U.S.C. 1531 et seq.), the CNOR and the Notice of
Findings on Resubmitted Petitions published by the Service on May 11,
2005 (70 FR 24870), included a finding that the immediate issuance of a
proposed listing rule and the timely promulgation of a final rule for
each of these petitioned species, including P.

[[Page 45055]]

submutica, was warranted but precluded by higher priority listing
actions, and that expeditious progress was being made to add qualified
species to the lists.
On April 28, 2005, the Center for Native Ecosystems (CNE), the
Colorado Native Plant Society, and botanist Steve O'Kane, Jr., Ph.D.,
submitted a petition to the Service to list Phacelia submutica as
endangered or threatened within its known historical range, and to
designate critical habitat concurrent with the listing (CNE et al.
2005, p. 1). We considered the information in the petition when we
prepared the 2006 CNOR (71 FR 53756, September 12, 2006). Section
4(b)(3)(C) of the Act requires that when we make a warranted but
precluded finding on a petition, we are to treat such a petition as one
that is resubmitted on the date of such a finding. We identified P.
submutica as a species for which we made a continued warranted but
precluded finding on a resubmitted petition in the Federal Register on
December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), and
November 9, 2009 (74 FR 57804). We retained an LPN of 8 for the
species. In the 2008 CNOR, we announced that we had not updated our
assessment for this species, as we were developing a proposed listing
rule (73 FR 75227). On June 23, 2010, we proposed to list P. submutica
as threatened (75 FR 35721). In the proposed rule, we found that
critical habitat for the species was prudent, but not determinable at
that time. A proposed rule to designate critical habitat for this
species is being published concurrently with this final rule.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
listing of Ipomopsis polyantha, Penstemon debilis, and Phacelia
submutica during the comment period associated with the publication of
the proposed rule (75 FR 35721), which opened on June 23, 2010, and
closed on August 23, 2010. We did not receive any requests for a public
hearing. We also contacted appropriate Federal, State, and local
agencies; scientific organizations; and other interested parties and
invited them to comment on the proposed rule during this comment
period.
During the comment period, we received 13 comment letters
addressing the proposed rule. All substantive information provided
during the comment period has either been incorporated directly into
this final determination or is addressed below.

Peer Review

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that included familiarity with
the species, the habitats in which the species occur, and conservation
biology principles. We received responses from the three peer
reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the proposed listing
of Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica. The
peer reviewers concurred with our analysis and conclusions, and
provided additional information, clarifications, and suggestions to
improve the final rule. Peer reviewer comments are addressed in the
following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

(1) Comment: One peer reviewer said that population trends cannot
be identified from available data for Penstemon debilis and Phacelia
submutica, but noted that annual fluctuations in plant numbers for both
species make them vulnerable to additional stressors such as habitat
loss. Another reviewer said that the lowest total annual plant count
for P. submutica should be zero, because the plants do not emerge at
all during very dry years. An agency commenter was concerned that the
zero counts might reflect inadequate survey methods.
Our Response: The low and high plant counts reported for Phacelia
submutica are simply a record of the lowest and highest plant counts
recorded during blooming season surveys at known occupied sites. Not
all occurrences are visited every year. Zero counts are reported only
when a site was visited, not as a default. We report the negative
surveys to show that the plants really do not emerge during some years,
and that the fluctuations in plant numbers make it hard to measure the
population trend.
(2) Comment: One peer reviewer indicated the correct name for the
sensitive species of blazing star associated with Penstemon debilis is
Mentzelia rhizomata (Roan Cliffs blazingstar), not Mentzelia argillosa
(Arapien blazingstar).
Our Response: We corrected the text in this final rule accordingly.
This is an important distinction, because Mentzelia rhizomata is a
Bureau of Land Management (BLM) sensitive species that will benefit
from protection of P. debilis habitat because it only grows on the same
layers of shale.
(3) Comment: One peer reviewer stated that the extent and imminent
nature of energy development may not have been ameliorated to the
extent suggested in the proposed rule. In 2010, natural gas production
in the range of Phacelia submutica and Penstemon debilis was the
highest in Colorado, an increase from the 2008 report that was cited in
the proposal.
Our Response: We have updated this final rule with the natural gas
production reports provided by the reviewer and the Colorado Oil and
Gas Conservation Commission (2010, pp. 1-2).
(4) Comment: One peer reviewer stated the potential impact of
climate change on Penstemon debilis may be greater than indicated in
the proposal, because the species is restricted to only one layer of
shale; thus, it may be impossible for this species to migrate to a more
suitable climate space if the substrate it depends upon does not exist.
The peer reviewer indicated that Camille Parmesan (2006, p. 649) has
authored a more comprehensive and current review documenting species'
distributional shifts in response to warming.
Our Response: We have incorporated Parmesan's findings into our
analysis of Factor E for Penstemon debilis. However, the current data
are not reliable enough at the local level for us to draw conclusions
regarding the imminence of climate change threats to P. debilis or the
other two species.
(5) Comment: One peer reviewer suggested the potential impacts of
fugitive dust on Penstemon debilis are overstated in the proposed rule.
For at least the viable population on public land, the nature of the
road is prohibitive to vehicles moving at speeds that could generate
much dust. Phacelia submutica, which is more exposed to dust, should
have an evaluation of dust impacts because it occupies habitat in the
vicinity of roads that can better accommodate heavy, fast moving
traffic. Additionally, Phacelia submutica habitats are more likely to
be in the vicinity of well pads and pipelines than Penstemon debilis,
and thus inclusion of an evaluation of the threat from dust on this
species is warranted.
Our Response: We consider dust effects an impact that does not rise
to the level of a threat to Penstemon debilis or Phacelia submutica,
because we do not have research results to assess its effect. However,
we have observed heavy dust settling on at least three of the Penstemon
debilis occurrences from

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heavy equipment and truck traffic (Ewing 2009a, p. 3). Most Phacelia
submutica occurrences are not close to dust-producing roads, but
Service biologists have observed dust sources along a pipeline
construction route near Phacelia submutica occurrences.
(6) Comment: One peer reviewer stated the proposed listing rule
fails to include pollinator information for Phacelia submutica and the
potential for disruption of pollinator-plant interactions due to
climate variations.
Our Response: The pollination mechanism for Phacelia submutica
remains unknown at this time. Based on the size and shape of the
flowers and lack of insects observed on the flowers, we expect that P.
submutica is self-pollinated. We have initiated a pollination study for
this species, but the results are not yet available. If the species did
depend on pollinators for reproduction, then climate change could
disrupt this relationship because the plants are receptive for a very
short time. Pollination could fail to occur if the weather factors
allowing the pollinating insects to emerge were not synchronized with
plant receptivity. Because we have no data to indicate that pollinators
are required, we do not assess the effects of climate variations on
pollinator-plant interactions.
(7) Comment: One peer reviewer indicated that critical habitat
should be determined for these three species based on the information
available at this time. Given the level of threats and the narrow
distribution of all three species, it is essential to provide the
protection of designated critical habitat as soon as possible.
Our Response: We are proposing to designate critical habitat for
the three species concurrently with this final rule. That proposal is
published elsewhere in today's Federal Register. Comments on the
proposal will be accepted following publication.
(8) Comment: Peer reviewers and commenters pointed out an error on
page 35733 of the proposed listing rule, where the projected average
temperature warming per decade was correctly cited as 0.2 [deg]C, but
the equivalent was incorrectly shown as 32.4 [deg]F.
Our Response: For the next 2 decades, a warming of about 0.36
[deg]F (0.2 [deg]C) per decade is projected. By the end of the 21st
century, average global temperatures are expected to increase 1.08 to
7.2 [deg]F (0.6 to 4 [deg]C) (Intergovernmental Panel on Climate Change
(IPCC) 2007, p. 45). We corrected the text in this final rule
accordingly.

Comments From the State of Colorado

Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from the State regarding the proposal to list
Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica are
addressed below. The Colorado Natural Areas Program (CNAP) is the State
agency within Colorado State Parks that works to cooperatively monitor
and protect Colorado's most significant natural features, including
rare plants.

Penstemon debilis

(9) Comment: The CNAP is concerned that listing Penstemon debilis
will discourage future voluntary protections by the oil and gas
industry. The CNAP stated in its letter that Oxy USA, Inc. (Oxy), has
implemented voluntary best management practices to avoid impacts and
reduce threats to the species, and they have supported 3 years of
monitoring to document the status of the species on their land. The
CNAP stated that although monitoring results at Mount (Mt.) Callahan
and Mt. Callahan Saddle Natural Areas show a statistically
insignificant downward trend in number of plant stems per plot, this
trend may be a natural variation in population size or caused by
climatic or other environmental factors, not by any effects from the
gas well construction. No impacts to the P. debilis individuals were
observed that may be related to natural gas development in the Natural
Areas, and the buffers instituted are believed to be adequate to
protect the populations. The CNAP will continue to work with Oxy to
track the trends of this species. Monitoring will be done with care to
minimize negative impacts from trampling of individual plants by people
collecting the data.
Our Response: The Service acknowledges that Oxy has implemented
voluntary best management practices to protect two of the Penstemon
debilis occurrences on their private land. Oxy and other energy
companies are aware that their compliance with conservation measures
recommended by the Service is entirely voluntary. We believe that this
level of protection, while voluntary and non-binding, minimizes the
threats to the species to an extent that we can list it as threatened,
rather than endangered. We also must consider the cumulative threats to
the species as a whole throughout its entire limited range in making
our listing decision. Despite the positive conservation being
implemented by Oxy, we determined that the species still meets the
definition of a threatened species because of cumulative effects of a
variety of threats, many not under the control of Oxy, and the threats
present in the remainder of the species' range.

Phacelia submutica

(10) Comment: The CNAP believes that the greatest threat to
Phacelia submutica is oil and gas development that may be allowed
within occupied habitat under current Federal regulations, because some
surveys in potential habitat may not indicate the presence of this
ephemeral and inconsistent species. Because this species may not emerge
on an annual basis, that makes potential surveys for it very
challenging, and surveys could result in the unintentional leasing and
development of occupied habitat.
Our Response: Our threats analysis incorporates and supports CNAP's
statement regarding the primary threats to Phacelia submutica.

Federal Agency Comments

Penstemon debilis

(11) Comment: In response to our description in the proposed rule
of impacts that resulted from inadequate regulation, the BLM pointed
out that the Anvil Points Mine reclamation was a Superfund project that
was not subject to the Act, and that section 7 consultation was not
required for the communication site access because the species was only
a candidate for listing. Of the 88 plants at the reclamation site that
were transplanted, covered, or fenced, BLM reported 71 survivors at the
end of the 2009 growing season.
Our Response: The BLM avoided and minimized impacts from the
reclamation project voluntarily, with input from the Service that was
comparable to a section 7 consultation. However, plants were destroyed,
habitat was modified, and the ongoing issue of impacts due to
communication site access remains unresolved. We believe that listing
as a threatened species will provide more support for agency efforts to
protect the species.

Phacelia submutica

(12) Comment: The U.S. Forest Service (USFS) feels that critical
habitat should not be designated for Phacelia submutica at this time
because we do not have enough information about its specific soil
requirements, seed bank, reproductive biology, or minimum population
size; and that new populations being discovered each year are leading
to new concepts of the species' distribution and requirements.

[[Page 45057]]

Our Response: Designation of critical habitat for the three species
is proposed concurrently in a separate rule in this edition of the
Federal Register. The criteria for critical habitat were evaluated
using the best scientific and commercial data available. Surveys in
2009-2010 increased the known sites and numbers of plants, but did not
change the habitat description or extend the range boundaries. We
believe that Phacelia submutica has a large enough range, enough
populations, and enough individuals that the occupied habitat alone, if
protected from threats, would be adequate for the future survival and
recovery of the species. We recognize that critical habitat designated
at a particular point in time may not include all of the habitat areas
that we may later determine are necessary for the recovery of the
species. A critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
recovery of the species.

Public Comments

(13) Comment: Support for listing the three plants was received
from the Colorado Natural Heritage Program (CNHP), seven other non-
profit environmental organizations in Colorado, and one local resident.
Some of these commenters also believe that the species proposed for
listing as threatened should not be subject to a 4(d) rule, which is a
special regulation that can provide greater flexibility by allowing
actions prohibited under section 9(a)(1) of the Act for species listed
as threatened.
Our Response: We believe that the general prohibitions for
threatened plants at 50 CFR 17.71 are appropriate for these two plant
species. As a result, we did not develop a 4(d) rule for Penstemon
debilis or Phacelia submutica, the two species we are listing as
threatened.
(14) Comment: Several environmental groups commented that critical
habitat is both prudent and determinable for all three species, and it
should include all known occurrences of each species, including
historical and recently extirpated and nonviable, as well as potential
habitat.
Our Response: We are proposing critical habitat for each of the
three species concurrently with this final listing rule. Critical
habitat is defined in section 3 of the Act as: (1) The specific areas
within the geographical area occupied by the species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features that are essential to the conservation of the
species, and which may require special management considerations or
protection; and (2) Specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species. All
known occurrences are evaluated, and must meet the criteria to be
included in proposed critical habitat.

Penstemon debilis

(15) Comment: Andrea Wolfe shared her unpublished results of
genetic research on Penstemon debilis in 2009, which show that its
genetic diversity is very limited and each occurrence is genetically
separated from the others, which indicates inbreeding depression.
Our Response: We appreciate receiving these results, which indicate
the limited ability of Penstemon debilis to adapt to habitat or climate
changes. We included them in our assessment of other natural factors
affecting the species, under Factor E.

Summary of Changes From Proposed Rule

No substantial changes have been made in the threats analysis or
determinations for the three species. Field surveys in 2010 increased
the recorded number of plants for each species, but did not expand
their known ranges or any decrease in the level of threats.

Endangered Status for Ipomopsis polyantha; Threatened Status for
Penstemon debilis and Phacelia submutica

Background

It is our intent to discuss below only those topics directly
relevant to the listing of Ipomopsis polyantha as endangered, and
Penstemon debilis and Phacelia submutica as threatened, in this section
of the final rule. More information on these species is available in
the June 23, 2010, proposed rule (75 FR 35721).

Species Information--Ipomopsis polyantha

Taxonomy and Species Description
Ipomopsis polyantha is a rare plant endemic to shale outcrops in
and around the Town of Pagosa Springs in Archuleta County, Colorado.
The species is in the Polemoniaceae (phlox) family and was originally
described by Rydberg (1904, p. 634) as Gilia polyantha. Two varieties,
G. polyantha var. brachysiphon and G. polyantha var. whitingii, were
recognized by Kearney and Peebles (1943, p. 59). Grant (1956, p. 353)
moved the species into the genus Ipomopsis. Currently available
information indicates that I. polyantha is a distinct species (Porter
and Johnson 2000, p. 76; Porter et al. 2010, pp. 195, 196, 199). It is
treated as such in the PLANTS database (U.S. Department of Agriculture,
Natural Resource Conservation Service (NRCS) 2003), and in the
Integrated Taxonomic Information System (2001). Reports of this species
occurring in Arizona and New Mexico by the PLANTS National Database and
State floras actually pertain to the two species that were formerly
treated as varieties of Ipomopsis polyantha (Anderson 2004, pp. 11,
15).
The CNHP ranks Ipomopsis polyantha as critically imperiled globally
(G1) and in the State of Colorado (S1) (CNHP 2010b, pp. 1-5). The
Nature Conservancy (TNC) and CNHP also developed a scorecard that ranks
I. polyantha among the most threatened species in the State based on
number of plants, quality of the plants and habitat, threats, and
adequacy of protection (CNHP and TNC 2008, p. 102).
Ipomopsis polyantha is an herbaceous biennial 12 to 24 inches (in)
(30 to 60 centimeters (cm)) tall, branched from near the base above the
basal rosette of leaves. Deeply divided leaves with linear segments are
scattered up the stem. Stems and flower clusters are covered with
glandular hairs. Flower clusters are along the stem in the axils of the
leaves as well as at the top of the stem. The white flowers are 0.4 in
(1 cm) long, with short corolla tubes 0.18 to 0.26 in (0.45 to 0.65 cm)
long, and flaring corolla lobes flecked with purple dots (Anderson
1988, p. 3). These dots are often so dense that they give the flower a
pinkish or purplish hue. The stamens extend noticeably beyond the
flower tube, and the pollen is blue (Grant 1956, p. 353), changing to
yellow as it matures (Collins 1995, p. 34). Seeds form a mucilaginous
(secreting sticky mucous) coat after they are wet. Seeds germinate much
faster in Mancos Shale soil than in potting soil (Collins 1995, p. 72).
Mature seeds germinate to form rosettes that produce flowering stalks
during the next growing season, or they may persist as rosettes for a
year or more until conditions are right for flowering. Plants produce
abundant fruits and seeds, but have no known mechanism for long-
distance dispersal (Collins 1995, pp. 111-112). After seeds are mature,
the plants dry up and die. We do not know how long the seeds remain
viable.
Pollination by bees is the most common means of reproduction for
Ipomopsis polyantha, and the primary pollinators are the honey bee
(Apis

[[Page 45058]]

mellifera), metallic green bee (Augochlorella spp.), bumble bee (Bombus
spp.), and digger bee (Anthophora spp.) (Collins 1995, pp. 71-72).
Ipomopsis polyantha is limited to Pagosa-Winifred soils derived
from Mancos Shale. The soil pH is nearly neutral to slightly alkaline
(6.6 to 8.4). The elevation range is 6,750 to 7,775 feet (ft) (2,050 to
2,370 meters (m)) (Service 2011c, p. 1). Plants occur in discontinuous
colonies as a pioneer species on open shale or as a climax species
along the edge of Pinus ponderosa (Ponderosa pine), mixed P. ponderosa
and Juniperus scopulorum (Rocky mountain juniper), or Juniperus.
osteosperma (Utah juniper) and Quercus gambellii (Gambel oak) forested
areas. In 1988, Anderson (p. 7) reported finding the highest densities
under P. ponderosa forests with montane grassland understory. Now the
species is found mostly on sites that are infrequently disturbed by
grazing, such as road right-of-ways (ROWs) that are fenced from grazing
(as opposed to open range), lightly grazed pastures, and undeveloped
lots (Anderson 2004, p. 20).
The two known occurrences of Ipomopsis polyantha are within about
13 miles (mi) (21 kilometers (km)) of each other, and collectively
occupy about 388.4 acres (ac) (157.1 hectares (ha)) of habitat within a
range that includes about 6.5 square mi (16.8 square km). The Pagosa
Springs occurrence is southeast of the Town of Pagosa Springs along
both sides of U.S. 84. Occupied habitat extends southward on the
highway ROW for 3 mi (4.8 km) from the intersection with U.S. 160, and
on private lands on both sides of the highway. The Dyke occurrence is
about 10 mi (16 km) west of Pagosa Springs along U.S. Highway 160. It
includes 0.5 mi (0.8 km) of highway ROW on both sides of U.S. 160,
adjacent private land, and a BLM parcel. Species occurrences are
further described in the June 23, 2010, proposed rule to list the
species (75 FR 35721). Table 1 summarizes land ownership and results of
the most recent plant counts reported within the two I. polyantha
occurrences.

Table 1--Occupied Habitat for Ipomopsis polyantha by Landownership (acres (ac) (hectares (ha))
[Lyon 2006a; CNAP 2007; CNAP 2008, pp. 1-5; CNHP 2008a; CNHP 2010a, pp. 1-8; Service 2011a, p. 2; Service 2011b,
p. 1]
----------------------------------------------------------------------------------------------------------------
Occurrence Land ownership ac (ha) Flowering Rosettes
----------------------------------------------------------------------------------------------------------------
Pagosa Springs including Mill Creek State ROW............ 27.6 (11.2) 3,029 3,083
County ROW........... 5.5 (2.2) 469 403
Town of Pagosa 7.5 (3.0) 126 15
Springs.
Private.............. 301.7 (122.1) 158,326 174,989
----------------------------------------------------------------------------------------------------------------
Subtotals...................... ..................... 342.3 (138.5) 161,950 178,490
============================================================================
Dyke............................... State ROW............ 2.3 (0.9) 19 102
BLM.................. 9.9 (4.0) 88 164
Private.............. 33.9 (13.7) 163 275
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Subtotals...................... ..................... 46.1 (18.6) 270 541
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Totals..................... ..................... 388.4 (157.1) 162,220 179,031
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Approximately 2.5 percent of the occupied habitat is on Federally
managed BLM land, 9.1 percent on State and County highway ROWs, 86.4
percent on private lands, and 1.9 percent on Pagosa Springs town park
land and county land (Service 2011a, p. 2).
In 2004, the total estimate of flowering plants throughout the
entire range of the species was 2,246 to 10,526 (Anderson 2004, p. 40).
Plant surveys from 2005 to 2007 documented dramatic increases in the
number of flowering individuals and rosettes within the Pagosa Springs
occurrence at two sites on private land and on the U.S. 84 ROW (CNAP
2007, pp. 1-2). This increase was primarily attributed to the plants
surveyed in 2005 and 2006 on a 3-ac (1.2-ha) private land site in the
Pagosa Springs occurrence. The rapid appearance of such a dense patch
of plants illustrates the species' ability to colonize barren Mancos
Shale soil, and demonstrates the reproductive success of the species;
however, the sites where they grow are vulnerable to habitat
destruction. Currently, the total estimate of flowering plants is
162,220 (see Table 1 above). Again, the increase from 2,426 flowering
plants counted in 2004 was largely due to the discovery of previously
undocumented plants during new surveys on private lands. The trend in
the species' status since 1988 is one of fluctuating population size
that is typical of biennial species, combined with the loss of several
hundred plants due to development (see Factor A below).

Summary of Factors Affecting Ipomopsis polyantha

Section 4 of the Act and its implementing regulations (50 CFR 424)
set forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. Listing actions may
be warranted based on any of the above threat factors, singly or in
combination. Each of these factors is discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

Ipomopsis polyantha is threatened with destruction of plants and
habitat due to commercial, residential, municipal, and agricultural
property development, and associated new utility installations and
access roads. We have documented recent losses of habitat and
individuals within the Pagosa Springs and Dyke occurrences of the
species, as described in more detail below.
Land Use Changes
Primary land use within the range of Ipomopsis polyantha has
historically

[[Page 45059]]

been livestock (horses or cattle) grazing, with homes on parcels of 35
ac (14 ha) or more. Several small businesses now occur along U.S. 84
within the Pagosa Springs occurrence. The intersection of U.S. 160 and
U.S. 84 is zoned by the Town of Pagosa Springs for business, and
commercially zoned land is currently available for development.
Archuleta County also is considering sites in this area for new county
buildings. These current and potential conversions of agricultural
lands to residential and commercial development are incompatible with
conservation of I. polyantha in the long term because the conversions
cause direct mortality and permanent loss of habitat. Conversely,
habitat modified by grazing may be recovered by changes in management.
Residential development is increasing in Archuleta County. The
population of Archuleta County was 5,000 in 1990, increasing to 12,430
in 2009 (U.S. Census Bureau 2011). Prior to the slowing down of the
real estate market over the past few years, projections for new
development in Archuleta County were high. For example, all private
land across the entire range of Ipomopsis polyantha is scheduled for
development in the Archuleta County and Town of Pagosa Springs
Community Plan (2000). In this plan, all areas occupied by I. polyantha
on private land outside of the Town limits are planned for low (35 ac
(14 ha)), medium (3 to 35 ac (1.2 to 14 ha)), or high (2 to 5 ac (0.81
to 2 ha)) density housing. The rate of current and proposed development
is the most significant threat to the species, because development
planned for the next 5 to 10 years will likely impact 86 percent of the
species' habitat. This rate of land conversion puts the species at risk
of extinction.
Private Development of 35 Acres (14 Hectares) or Less
Within the Pagosa Springs occurrence, a residential and
agricultural development of about a dozen 35-ac (14-ha) parcels was
built prior to 2005 on occupied habitat east of U.S. 84 (Archuleta
County Assessor 2008, p. 1). In 2005, when most residences were new,
about 782 flowering plants were counted in meadows and along the fences
and access roads (Lyon 2005, pp. 1-2). By 2008, an increased number of
horses were pastured in the meadows, roadsides and driveways were
graded or widened, and few plants or rosettes could be found as a
result (Mayo 2008b, p. 2). This information indicates that Ipomopsis
polyantha plants are vulnerable to grazing effects and road
improvements, and habitat can be modified to exclude plants in as few
as 3 years. We do not know exactly what level of grazing is sufficient
to eliminate the I. polyantha plants in a pasture. In 2006, at another
location along U.S. 84, a private landowner mowed several hundred feet
of occupied habitat on the highway ROW (Lyon 2006a, p. 1). No plants or
rosettes were found at this site from 2006 to 2008, indicating that
mowing destroys plants and halts reproduction. In 2005, dense patches
of flowering plants were noted, from across the fence, in a privately
owned meadow along U.S. 84. In 2007, a new home was built, and the
meadow was mowed; no plants could be seen at the same site in 2008
(Mayo 2008b, p. 2), again indicating that mowing destroys flowering
plants and inhibits reproduction, because the seeds cannot mature and
grow into rosettes. We do not know how long the seeds remain viable in
the soil.
Private and County Development of Large Parcels
In 2008, the Pagosa Springs Town Council approved annexation of the
96-ac (39-ha) private development called Blue Sky Village into the Town
(Aragon 2008a, pp. 1-2). The proposed development plan was for a mixed
commercial and high- to low-density residential village (Hudson 2008,
p. 1). The 96-ac (39-ha) parcel is adjacent to the highest density of
Ipomopsis polyantha plants, and includes about 2,562 ft (781 m) of
habitat on U.S. 84 frontage at the center of the species' distribution
(Archuleta County Assessor 2008, p. 1). Plants have been observed on
the property from over the fence, but not counted. Occupied habitat
also borders the southern edge of the property.
In 2010, the Blue Sky Village property went into foreclosure. The
County announced that it will acquire the property. Possible uses of
the land include county buildings, sports fields, and the sale of
commercial lots along the highway (Hudson 2010, p. 1). Development of
the Blue Sky Village/County property would significantly reduce the
amount of habitat within the species' range. Location of the
development between the highest density of plants and the rest of the
Pagosa Springs occurrence on the east side of U.S. 84 would further
fragment the habitat that has already been impacted by commercial,
residential, and agricultural land uses.
Another private development that includes 47 ac (19 ha) of occupied
habitat and about 1 mi (1.6 km) of frontage along the west side of U.S.
84, is being considered for annexation and development (Aragon 2008a,
p. 2; Archuleta County Assessor 2008, p. 1; Hudson 2010, p. 1).
Preliminary plans show home sites and open space on the 47 ac (19 ha)
of currently occupied plant habitat.
The above two development proposals would cover about 42 percent of
the habitat within the Pagosa Springs occurrence, which is the larger
of the two occurrences and is essential to the species' continued
existence. Plants and habitat along U.S. 84 ROW are likely to be
disturbed or destroyed by construction of new access roads, utility
installations, and acceleration and deceleration lanes built to
accommodate the proposed developments. The pace of development around
Pagosa Springs fluctuates with the economy, but given the direction in
the County plan and the projected growth rates for the County and the
Town of Pagosa Springs, it is highly likely that further development
will occur along U.S. 84 within 5 to 10 years.
A third large parcel of 1,362 ac (551 ha) proposed for development,
plus 2,819 ft (859 m) of U.S. 84 frontage, is another annexation to the
Town of Pagosa Springs being considered within the range of Ipomopsis
polyantha. The proposed development, called Blue Sky Ranch, would
include single and multi-family residential housing, a hotel and
conference center, a golf course with clubhouse, and an equestrian
center with riding trails and a multi-use arena (Aragon 2008b, p. 2).
The status of the proposed development is unknown at this time, because
it depends on the real estate market. This area has not been surveyed
for plants, and is not included in the total occupied habitat.
Utilities Installations and Maintenance
Utilities installations and construction activities that are
necessary for development can eliminate habitat and destroy Ipomopsis
polyantha plants. During 2005 and 2006, a sewer line installation on
the U.S. 84 ROW resulted in the loss of about 498 plants and 541
rosettes and the modification of about 1,473 ft (449 m) of roadside
habitat (Mayo 2008c, p. 8). The Colorado Department of Transportation
(CDOT) and Archuleta County consulted with the Service, and agreed on
avoidance measures for this project, but contractors failed to follow
the protocol. Where avoidance of plants and habitat was specified,
topsoil, plants, and rosettes were scraped away on the bank; where
native plant seeding was specified, nonnative grasses were seeded; and
where straw was prohibited, a thick layer of straw was

[[Page 45060]]

applied (Mayo 2008c, pp. 1-4; Peterson 2006, pp. 1-3). As a result, in
2008, the remaining 8 flowering plants and 5 rosettes at this site were
found in one spot, near plants on an adjacent property not disturbed by
the sewer line project (Mayo 2008c, p. 8). In 2010, the combined number
of flowering plants and rosettes at the site was 167. This incident
demonstrates that I. polyantha cannot quickly recover from soil
disturbance.
Although I. polyantha can colonize unvegetated Mancos Shale soil
near a seed source, the number of flowering plants that appear in
subsequent years depends on seed production and the survival of
rosettes that are not outcompeted by other species or destroyed during
ground disturbance. Power line maintenance was completed within
occupied habitat in the Pagosa Springs occurrence in 2007. As a result
of careful planning, there was negligible damage to adult plants.
However, 278 rosettes were transplanted, but did not survive to
reproduce for unknown reasons. We conclude that the species is highly
vulnerable to ground disturbance during development because seedlings
and rosettes are destroyed and transplanting is not known to be
successful.
Highway Right of Ways
The Archuleta County and Town of Pagosa Springs revised 2004 Trails
Plan (2004, p. 18) calls for an 8-ft (2.4-m) wide, 2.5-mi (4-km) long,
paved bike path on the highway ROW from U.S. 160 south along U.S. 84 in
occupied Ipomopsis polyantha habitat. This route, prioritized for
completion as soon as funding is available, would eliminate about 38
percent of the total occupied habitat on the highway ROWs and 4 percent
of the total occupied habitat for the species (see Table 1 above).
Another planned paved bike trail, parallel to U.S. 160 and through the
Dyke occurrence of I. polyantha, is on the low priority list in the
Trails Plan (Archuleta County and Town of Pagosa Springs 2004, p. 28).
Development of this bike trail would eliminate the portion of the Dyke
occurrence located on the south side of the highway where the trail
would be located, covering about 3 percent of the total highway ROW
habitat.
The distribution of Ipomopsis polyantha within highway ROWs makes
this species susceptible to threats associated with highway activities
and maintenance. Exotic grasses planted by CDOT along roadsides
dominate the ROW between pavement and ditch, limiting most I. polyantha
plants to the ROW bank between ditch and fence. This limitation to the
species' habitat along roadsides is significant because so little
habitat exists elsewhere for the species. I. polyantha plants growing
within the highway ROW along U.S. 84 in 2004 were killed when the
thistles growing among them were treated with herbicide (Anderson 2004,
p. 36). Since that time, Archuleta County has discontinued broadcast
herbicide use and mowing on ROWs within the species' range. However,
the planted exotic grasses continue to limit the species' habitat.
Highway ROWs provide about 9 percent of the occupied habitat for
Ipomopsis polyantha. All highway ROW habitat is at risk of disturbance
by construction of new access roads or acceleration lanes, bike paths,
and utilities installation or maintenance. Such construction results in
direct loss of I. polyantha individuals or reduced suitability of its
habitat by altering the soil characteristics (Anderson 2004, p. 36).
Summary of Factor A
We determined that the present and threatened destruction,
modification, and fragmentation of Ipomopsis polyantha habitat from
commercial, municipal, agricultural, and residential development,
associated new utility installations, construction of new access roads
and bike paths, competition from introduced roadside grasses, and other
impacts to highway ROWs are significant and imminent threats to the
species throughout its range. At this time, the species persists
primarily on private lands (about 86 percent) and highway ROWs (about 9
percent). Based on the rate of current and proposed development over
the entire range of the species, we estimate that 95 percent of the
species' habitat could be modified or destroyed within 5 to 10 years.
The plants would then be relegated to 10 ac (4 ha) of BLM land; 7.5 ac
(3 ha) of Town park land; small, fragmented portions of highway ROWs;
and a few, small, lightly used, private yards and pastures, thus
putting the species in danger of extinction.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Activities resulting in overutilization of Ipomopsis polyantha
plants for commercial, recreational, scientific, or educational
purposes are not known to exist. Therefore, we do not consider
overutilization for commercial, recreational, scientific, or
educational purposes to be a threat to the species now or in the
foreseeable future.

C. Disease or Predation

Disease
Disease is not known to affect Ipomopsis polyantha. Therefore, we
do not consider disease to be a threat to the species now or in the
foreseeable future.
Predation
This species is threatened by destruction of flowering plants,
rosettes, and seeds due to concentrated livestock disturbance and some
herbivory. Observations of the ``fence line effect''--healthy plants
outside the fence and impacted plants inside the fence--at several
locations on private land used for cattle and horse grazing indicate
that Ipomopsis polyantha does not tolerate intensive livestock grazing
(Anderson 2004, p. 30). For example, grazing by horses at a
residential/agricultural development within the Pagosa Springs
occurrence in 2005 resulted in few I. polyantha plants 3 years later
(Mayo 2008b, p. 2). Over-the-fence observations from seven locations
(pastures) in 2009 found few or no plants in the three heavily grazed
pastures and numerous plants in the adjacent pastures with light or no
grazing (Glenne and Mayo 2010, pp. 1-3). We do not know whether the
destruction of the plants was a result of herbivory or trampling. I.
polyantha is not found in heavily grazed pastures, but occurrences have
been observed in lightly grazed horse pastures and abandoned pastures
(CNAP 2007, p. 6). Plants could possibly recolonize a pasture if
livestock numbers were reduced sufficiently and the seed bank was still
viable, or if there was a seed source nearby, such as on the ungrazed
side of a fence. Indications are that the species may persist in areas
with light grazing, but the level of impact and the threshold of
species' tolerance have not been studied. Few plants persist in areas
of continual grazing (Collins 1995, pp. 107, 111, 112). We determined
that destruction of flowering plants, rosettes, and seeds due to heavy
livestock use is a significant and ongoing threat to I. polyantha now
and in the foreseeable future.

D. The Inadequacy of Existing Regulatory Mechanisms

Local Laws and Regulations
Town and county zoning ordinances have the potential to affect
Ipomopsis polyantha and its habitats. We know of no town or county
regulations that provide for protection or conservation of I. polyantha
or its habitat. As discussed under Factor A above, Archuleta County
road maintenance crews voluntarily

[[Page 45061]]

refrain from mowing or broadcast spraying ROWs within the range of
Ipomopsis polyantha; however, there is no law, regulation, or policy
requiring them to do so. New annexation of 2,018 ac (817 ha) into the
Town of Pagosa Springs will change zoning from 35-ac (14-ha)
residential and agricultural parcels to commercial and small lot
residential, with anticipated adverse impacts to the Pagosa Springs
occurrence of I. polyantha, as described under Factor A above.
Decisions regarding annexations into the town and changes in allowable
subdividing of parcels in the county are currently being made to
encourage growth that will boost the local economy. Provisions for
avoidance or minimization of disturbance to habitat for the plants are
not included in these decisions or plans.
State Laws and Regulations
No State regulations protect rare plant species in Colorado.
Ipomopsis polyantha is classified by CNHP as a G1 and S1 species, which
means it is critically imperiled across its entire range and within the
State of Colorado (CNHP 2010b, pp. 1-5). The CDOT has drafted best
management practices for ROWs within I. polyantha habitat in
collaboration with the Service (Peterson 2008, p. 1), but the agreement
has not been finalized. In 2006, voluntary measures to minimize impacts
to plants from a sewer line installation along U.S. 84 were recommended
by CDOT and supervised by the county, but not implemented by the
contractors, as described under Factor A (Mayo 2008c, pp. 1-4; Peterson
2006, pp. 1-3).
Federal Laws and Regulations
Ipomopsis polyantha is on the sensitive species lists for the USFS
(2006, pp. 5, 6, 13, 15-20; USFS 2009, p. 6) and the BLM (2000, p. 3;
2008b, p. 47). Occupied habitat has not been found on USFS land, but
there is nearby habitat that appears to be suitable, so the species is
included in project clearance surveys on the forest. In 2006, we
estimated that the Dyke occurrence extended onto 20 ac (8 ha) of BLM
land (Lyon 2007b, pp. 3, 12, 13); 88 plants and 164 rosettes were found
there in 2007 (CNAP 2007, p. 2). In 2010, we revised the estimated
occupied BLM habitat to 9.9 ac (4.0 ha) (Service 2011a, p. 2). This BLM
parcel was withdrawn from a proposed land exchange so that the plant
habitat would remain under Federal management (Brinton 2009, pers.
comm.; Lyon 2007b, p. 3). We believe that BLM adequately protects
Ipomopsis polyantha on its lands pursuant to the Federal statutes and
regulations that guide Federal land management. However, so little of
the species' habitat occurs on BLM lands that the BLM can do little to
influence the overall status of the species.
Summary of Factor D
We reviewed the suite of existing regulatory mechanisms that could
potentially offer some protection to Ipomopsis polyantha, including the
Federal Land Policy and Management Act (FLPMA)(43 U.S.C. 1701 et seq.),
and State and local laws and determined that these existing regulatory
mechanisms are inadequate to address the primary threats to the
species. Ninety-seven percent of the known range of the species is on
State, Town, and private lands, affording the species little to no
protection on these lands. Federal statutes and regulations governing
natural resource protection apply only to 2.5 percent of the occupied
habitat and therefore can do little to influence the overall status of
the species. The State of Colorado offers no regulatory protection to
plants, which means that protection falls upon local County and Town
ordinances. The planning regulations governing growth in Archuleta
County and the Town of Pagosa Springs do not contain any requirements
to protect rare plants, including I. polyantha, when siting new growth
and development. In fact, the current county planning regulations
contribute to the risk of extinction for the species by facilitating
development in the last remaining habitat occupied by the species.
Therefore, we determined that existing regulatory mechanisms do not
adequately address the primary threats to the species.

E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence

Habitat and Distribution
The adaptation of Ipomopsis polyantha to Pagosa-Winifred soils
derived from Mancos Shale limits it to about 6.5 square mi (16.8 square
km) within a 13-mi (21-km) range of fragmented habitat on outcrops of
Mancos Shale. The species has specific physiological requirements for
germination and growth that may prevent its spread to other locations
(Anderson 2004, pp. 23-24). In greenhouse trials, seeds will germinate
and grow on other soils, but they grow much faster on Mancos Shale
soils (Collins 1995, p. 114). Faster growth may give I. polyantha a
competitive advantage on relatively barren Mancos shale that it lacks
on other soils, where its smaller seedlings have more competition from
other plants for nutrients and water. The species produces more seed
when it is cross-pollinated (Anderson 2004, p. 23); therefore, existing
and foreseeable fragmentation of habitat may cause gene flow to be
obstructed. Pollinator-mediated pollen dispersal is typically limited
to the foraging distances of pollinators, and no bee species is
expected to travel more than 1 mi (1.6 km) to forage (Tepedino 2009, p.
11). Thus, it is likely that the Dyke occurrence, of about 270 plants
and 541 rosettes, is genetically isolated from the Pagosa Springs
occurrence 13 miles (21 kilometers) away. Spatially isolated plant
populations are at higher risk of extinction due to inbreeding
depression, loss of genetic heterogeneity, and reduced dispersal rates
(Silvertown and Charlesworth 2001, p. 185).
Transplanting
Rosettes in the path of power pole replacements were transplanted
to suitable habitat in the town park in 2007. The 278 transplants
survived the winter and produced about 27 flowering plants. However, no
surviving rosettes could be relocated in the fall of 2007, and no
evidence of trampling or habitat destruction was found (Coe 2007, pp.
2-3). Another attempt at transplanting rosettes, to save them from
destruction during utility installations in 2005, was not effective in
producing new rosettes in the third year (Brinton 2007, pers. comm.).
There was no evidence of trampling or habitat destruction with these
transplants. Unless effective methods are developed, most plants that
cannot be avoided during utility installations and construction
activities are unlikely to survive and reproduce. Whether the species
can survive translocation under other circumstances remains uncertain,
but at this time we consider transplantation an ineffective method of
mitigating the impacts of development. For this reason, we conclude
that the species is highly vulnerable to development because
populations cannot be successfully moved out of the way.
Fluctuating Population Size
Ipomopsis polyantha shows great differences in plant numbers from
year to year, probably because the plants are biennial and grow from
seed. This trait makes them more vulnerable than perennials to changes
in environment, including timing and amount of moisture and length of
time since disturbance. With increased time after disturbance,
competition from both native and nonnative plants increases (CNAP
2008a, p. 4). As a biennial species, I. polyantha also may be

[[Page 45062]]

vulnerable to prolonged drought. During drought years, seeds may not
germinate and plants may remain as rosettes without flowering or
producing a new crop of seeds.
Climate Change
Habitat changes as a result of climate change could potentially
impact Ipomopsis polyantha. Localized projections indicate the
southwest United States may experience the greatest temperature
increase of any area in the lower 48 States (IPCC 2007, p. 30). A 10 to
30 percent decrease in precipitation in mid-latitude western North
America is projected by the year 2050, based on an ensemble of 12
climate models (Milly et al. 2005, p. 1). Climate modeling at this time
has not been refined to the level that we can predict the amount of
temperature and precipitation change within the limited range of I.
polyantha. Therefore, this analysis is speculative based on the data
available at this time. When plant populations are impacted by reduced
reproduction during drought years, they may require several years to
recover. Climate change may exacerbate the frequency and intensity of
droughts in this area and result in reduced species' viability as the
dry years become more common. As described above, I. polyantha is
sensitive to the timing and amount of moisture due to its biennial life
history. Thus, if climate change results in local drying, the species
could experience a reduction in its reproductive output.
Recent analyses of long-term data sets show accelerating rates of
climate change over the past 2 or 3 decades, indicating that the
extension of species' geographic range boundaries towards the poles or
to higher elevations by progressive establishment of new local
occurrences will become increasingly apparent in the short term (Hughes
2000, p. 60). The limited geographic range of the Mancos Shale
substrate that underlies the entire Ipomopsis polyantha habitat likely
limits the ability of the species to adapt by shifting occurrences in
response to climatic conditions.
Summary of Factor E
We determined that the natural and human-caused factors of specific
soil and germination requirements, fragmented habitat, effects of
drought and climate change, and lack of proven methods for propagation
and reintroduction present an imminent and moderate degree of threat to
Ipomopsis polyantha across the entire range of the species. These
factors make the species highly vulnerable to the development threats
described under Factor A, and it is highly unlikely that the species
could respond to these threats by extending its range.
Cumulative Impacts
Some of the threats discussed in this finding could work in concert
with one another to cumulatively create situations that potentially
impact Ipomopsis polyantha beyond the scope of each individual threat.
For example, as discussed under Factor A, destruction and modification
of habitat by clearing the ground, mowing and weed spraying, and
concentrated livestock grazing could reduce the number of available
pollinators for the plants by removing other species of blooming plants
that attract pollinators and by destroying the ground-nesting habitat
needed by bees. A reduction in bee pollinators could cause I. polyantha
to produce fewer seeds. Such cumulative impacts from development-
related activities are likely to impact the species, given the ubiquity
of development within the habitat.
We have not identified other likely scenarios where the threats
discussed in the five factors above have potential to interact
synergistically to produce threats to Ipomopsis polyantha beyond those
which we have analyzed.
Summary of Factors
The Pagosa Springs occurrence of Ipomopsis polyantha totals
approximately 342 ac (138 ha) of Ipomopsis polyantha habitat, including
3 mi (4.8 km) of highway ROW and the private properties on either side
of the highway. The smaller Dyke occurrence of about 46 ac (19 ha)
includes highway ROWs, private land, and 10 ac (4 ha) of BLM land.
Destruction of plants, when combined with the modification and
fragmentation of habitat within this small range, results in a
substantial loss to the viability of the species. Both known
occurrences face ongoing, new, and foreseeable threats, including
commercial, residential, agricultural, and municipal development;
associated road and utility improvements and maintenance; heavy
livestock use; inadequacy of existing regulatory mechanisms to address
the primary threats to the species; fragmented habitat; and prolonged
drought conditions. The magnitude of threat for I. polyantha is high
due to the direct overlap of ongoing and planned land development on 95
percent of the known habitat. The overall impact of current and planned
development is likely to result in extensive disturbance and
destruction of the remaining habitat within the foreseeable future of 5
to 10 years, depending on economic growth in the area, thus putting the
species in danger of extinction.

Species Information--Penstemon debilis

Description
Penstemon debilis is a rare plant, endemic to oil shale outcrops on
the Roan Plateau escarpment in Garfield County, Colorado. This species
is known by the common names Parachute beardtongue and Parachute
penstemon. P. debilis is classified by the CNHP as a G1 and S1 species,
which means it is critically imperiled across its entire range and
within the State of Colorado (CNHP 2010b, pp. 6-10). Traditionally, the
genus Penstemon was included in the Scrophulariaceae (figwort) family.
However, Penstemon is now considered to be within the Plantaginaceae
(plantain) family due to recent research using DNA sequences (Oxelman
et al. 2005, p. 415). We recognize this placement and make the
appropriate attribution in the amendments to 50 CFR 17.12(h) at the end
of this document. The text includes the family name as Plantaginaceae.
Penstemon debilis was discovered in 1986, and was first described
by O'Kane and Anderson in 1987 (pp. 412-416). P. debilis is a mat-
forming perennial herb with thick, succulent, bluish leaves, each about
0.8 in. (2 cm) long and 0.4 in. (1 cm) wide. Plants produce shoots that
run along underground, forming what appear as new plants at short
distances away. Individual P. debilis plants are able to survive on the
steep, unstable, shale slopes by responding with stem elongation as
leaves are buried by the shifting talus. Buried stems progressively
elongate down slope from the initial point of rooting to a surface
sufficiently stable to allow the development of a tuft of leaves and
flowers (O'Kane and Anderson 1987, pp. 414-415). The funnel-shaped
flowers are white to pale lavender, and bloom during June and July. P.
debilis plants produce a small number of seeds that are dispersed by
gravity. They require cross pollination, and have many different
pollinators that vary between occurrences (McMullen 1998, p. 26). None
of the pollinators are specialists to P. debilis, nor are any of them
rare (McMullen 1998, p. 31).
Genetic diversity in all populations of P. debilis surveyed is very
limited and there is little contact among the populations, which
indicates inbreeding depression (Wolfe 2010, pers. comm.). There is a
close genetic relationship between the two Mount Callahan populations.
The Anvil Points populations are also clustered together,

[[Page 45063]]

and the Mount Logan population is intermediate between the other groups
(Wolfe 2010, pers. comm.).
Habitat
Penstemon debilis seems to be adapted to natural physical
disturbance (McMullen 1998, p. 81). Many of the characteristics that
are most similar among sites promote continual shifting of the
substrate: steep slopes, unstable surface layers of broken shale
rubble, and no surface soil (McMullen 1998, p. 82). The plants grow on
steep, oil shale outcrop slopes of white shale talus at 8,000 to 9,000
ft (2,400 to 2,700 m) in elevation on the southern escarpment of the
Roan Plateau above the Colorado River and the town of Parachute,
Colorado. The Roan Plateau falls into the geologic structural basin
known as the Piceance Basin. Average annual precipitation at Parachute,
Colorado, is 12.75 in (32.4 cm) (IDcide 2009, p. 1), which is
considered a high desert climate. P. debilis is found only on the
Parachute Creek Member of the Green River Formation. P. debilis is
often found growing with other species endemic to the Green River
formation, including Mentzelia rhizomata (Roan Cliffs blazingstar)
(Reveal 2002, pp.763-767), Astragalus lutosus (dragon milkvetch),
Festuca dasyclada (Utah fescue), and Thalictrum heliophilum (sun-loving
meadowrue), as well as several non-endemics (O'Kane & Anderson 1987, p.
415).
Distribution
The historical range and distribution for this species is unknown.
All of the currently known occurrences occupy about 91.8 ac (37.2 ha)
on the Green River geologic formation in Garfield County, Colorado.
Although this formation is underground throughout most of the Piceance
Basin, it is exposed on much of the southern face of the Roan Plateau,
to which the plant is restricted. The total area of the plant's
geographic range is about 2 mi (3 km) wide and 17 mi (27 km) long. Six
occurrences of Penstemon debilis were found between 1986 and 2005; two
of them are no longer viable (CNHP 2010a, pp. 9-23). It is likely that
unknown occurrences exist, because many areas are inaccessible to
surveyors due to cliff-side terrain or private land ownership or both.
Occurrences
Penstemon debilis occurrences are described in the proposed rule to
list the species (75 FR 35728-35729) and summarized in Table 2.

Table 2--Penstemon debilis Occurrences by Landownership (acres (ac) (hectares (ha))
[CNHP 2010a, pp. 9-23; Ewing 2008a; Ewing 2009a; DeYoung 2008a pers. comm.; DeYoung 2009b, pers. comm.; DeYoung 2009c, pers. comm.; Service 2011a, p. 4]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total plant
Occurrence Viability Number of plants ac (ha) mortality* Trend Land ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mt. Callahan Natural Area... Excellent....... 2,200........... 32.7 (13.2)...................... None............ Stable to Private.
slightly
downward.
Mt. Callahan Saddle Natural Good............ 650............. 3.8 (1.5)........................ None............ Stable to Private.
Area. slightly
downward.
Smith Gulch................. Fair............ 50.............. 13.4 (5.4)....................... Unknown......... ............... BLM.
Anvil Points Mine........... Good............ 700............. 5.3 (2.1)........................ 20.............. Small downward. BLM.
Anvil Points Rim............ Poor............ 2............... 5.7 (2.3)........................ 250............. Nearly BLM.
extirpated.
Mt. Logan Mine.............. Fair............ 483 Private..... 24.7 (10.1) Private.............. 30.............. Small downward. Private.
50 BLM.......... 5.8 (2.3) BLM.................... ................ ............... BLM.
Mt. Logan Road.............. Poor............ 3............... 0.4 (0.2)........................ 7............... Nearly BLM.
extirpated.
-----------------------------------------------------------------------
Total................... ................ 4,138........... 91.8 (37.1)...................... 307............. ............... ................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Total of all dead plants reported from all sources.

Two occurrences on BLM land, Anvil Points Rim and Mt. Logan Road,
have lost 257 plants and are nearly extirpated. Because these two
occurrences have only five plants remaining and we do not expect them
to recover, we consider these occurrences nonviable, and focus our
analysis of ongoing and foreseeable threats on the four viable
occurrences.
The occurrences on BLM land represent about 19.4 percent of the
total plants counted and approximately 33.3 percent of the occupied
habitat. A new Smith Gulch location on BLM land has been added to the
Mt. Callahan Saddle occurrence because it is on shale deposited at the
base of the cliffs directly below the saddle (Graham 2009a, pp. 1-2).
Oxy USA Inc. owns land that contains 68.9 percent of the total plants
on 39.8 percent of the occupied habitat, with agreements directing
management of lands under their control. The Oxy oil shale division
owns land with 11.6 percent of the plants on 26.9 percent of the
occupied habitat, with no management agreements.
Summary of Factors Affecting Penstemon debilis

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

Penstemon debilis habitat is threatened by energy development and
associated impacts. Of the four known viable occurrences (Mt. Callahan
and Mt. Callahan Saddle Natural Areas, Anvil Points Mine, and Mt. Logan
Mine), all but the Anvil Points Mine occurrence are on lands wholly or
partially owned by energy development companies. All four viable
occurrences face ongoing or potential threats, including oil and gas
development, oil shale extraction and mine reclamation, road
construction and maintenance, and vehicle access through occurrences.
Oil and Gas Development
The Mt. Callahan and Mt. Callahan Saddle Natural Area occurrences,
which include approximately 68.9 percent of the total known Penstemon
debilis plants on 39.7 percent of the occupied habitat, occur on land
owned by Oxy USA Inc. (Oxy). These occurrences are behind locked gates,
making them inaccessible to the public. Oxy has developed two natural
gas well drilling pads within a 680-ac (275-ha) area that includes both
occurrences (Webb 2008, p. 1). One pad is located 360 ft (110 m) from
the nearest known P. debilis individual and 105 ft (32 m) uphill from
its habitat (Ewing 2008a, p. 2). The other pad is located farther from
the habitat, where runoff will flow down the opposite side of the
ridge. Operation of these wells could potentially impact P.

[[Page 45064]]

debilis by dust generation, loss of pollinator habitat, spills of
produced water or other drilling wastes, and inadvertent trampling by
employees and contractors. Monitoring of the occurrences, in connection
to the energy development, has resulted in trampling of individual
plants by people collecting the data (Ewing 2009a, pp. 1-2).
To protect plants and habitat from potential impacts, CNAP and Oxy
have agreed to best management practices and conservation measures, to
include plant surveys, surface disturbance buffers, designated travel
routes, handling of produced wastes, dust abatement, a monitoring plan
for the plants, and weed management. Working with Oxy, CNAP designated
the areas of Mt. Callahan and Mt. Callahan Saddle as State Natural
Areas (Kurzel 2008, pers. comm.; CNAP 1987, pp. 1-7; CNAP 2008a, pp. 1-
7; Webb 2008, p. 1). Through these designations, the landowner has
agreed to develop natural gas pads in a way that will avoid or minimize
impacts to the P. debilis occurrences (Ewing 2008a, pp. 1-2). The
agreements include conservation measures such as storm water management
and a noxious weeds management plan (CNAP 2008c, pp. 1-4; CNAP 2008d,
pp. 1-4). The CNAP has been very successful in garnering landowner
participation in conservation of rare species in Colorado. The plant
habitat on the natural areas appears unmodified by the gas well pad
activity. Trampling of plants during monitoring has been noted as a
minor impact that will be minimized in the future by modifying the
sampling methods. Natural area agreements are voluntary and can be
terminated at any time by either party with a 90-day written notice.
However, we believe that these natural area agreements for P. debilis,
while voluntary and non-binding, minimize the threats to the species to
an extent that we can list it as threatened, rather than endangered.
The Smith Gulch location of an estimated 50 plants was discovered
on BLM lands below the Mt. Callahan occurrences at the base of the
cliffs during surveys for a proposed oil and gas development project in
June 2009 (Graham 2009a, p. 1). Two well pads, and corresponding roads
and pipelines, were proposed for this area (Graham 2009a, p. 3; Graham
2009b, pers. comm.). Following an environmental assessment, two well
pads were permitted, to be located about 800 ft (244 m) downslope from
the plants. The pads have not been built as of February 2011 (DeYoung
2011b, pers. comm.). When development proceeds, we anticipate no
significant impacts to the plants unless they get washed down the
drainage into the gas well area, which we cannot predict. Potential
minor impacts are loss of pollinator habitat, dust impacts, or
inadvertent trampling.
Oil and gas exploration and development continues to increase each
year on both private and BLM lands on and around the Roan Plateau,
where all of the known Penstemon debilis populations are found. In
Garfield County, 566 new wells were permitted in 2003; 796 in 2004;
1,508 in 2005 (Colorado Oil and Gas Conservation Commission (COGCC)
2006, p. 1); 1,844 in 2006; 2,550 in 2007 (COGCC 2008, p. 1); and 2,888
in 2008 (COGCC 2009, p. 1). Because of a decrease in natural gas
prices, new well permits decreased in 2009 to 743 (Webb 2009, p. 1;
COGCC 2009, p. 1), but increased again to 1,887 in 2010, the highest
for a county in Colorado after Weld County (COGCC 2010, p. 17).
Energy exploration and development activities include construction
of new unpaved roads, well pads, disposal pits, evaporation ponds, and
pipeline corridors, as well as off-road travel by employees. Each of
these actions has the potential to cause direct impacts to Penstemon
debilis, such as plant removal and trampling, and indirect impacts,
such as dust deposition and loss of habitat for pollinators. Because P.
debilis was unknown as a species until 1987, and the occurrences are on
private land or in remote locations on public land, the impacts may go
unnoticed. For example, impacts to the Mt. Logan Mine occurrence were
unknown until the occurrence was recorded in 2005. Even after the
discovery, further mine-related impacts occurred because most of the
plants were on oil shale company land, making it difficult for BLM to
manage the occurrence (CNHP 2010a, pp. 17-18; Ewing 2009a, p. 4).
Road traffic on unpaved roads increases dust emissions on
previously stable surfaces (Reynolds et al. 2001, p. 7126). For every
vehicle traveling 1 mi (1.6 km) of unpaved roadway once a day, every
day for a year, approximately 2.5 tons of dust are deposited along a
1,000-ft (305-m) corridor centered on the road (Sanders 2008, p. 20).
Vascular plants can be greatly affected within the zone of maximum dust
fall (i.e., the first 410 ft (125 m) from the road) (Walker and Everett
1987, p. 481). Excessive dust may affect photosynthesis, affect gas and
water exchange, clog plant pores, and increase leaf temperature,
leading to decreased plant vigor and growth (Ferguson et al. 1999, p.
2; Sharifi et al. 1997, p. 842). Because the viable occurrences of P.
debilis are within 300 ft (91 m) of roads, well within the zone of
maximum dust fall, they are all likely to be affected by decreased
ability to photosynthesize, impaired gas and water exchange, clogged
pores, and decreased plant vigor and growth. However, traffic volume
and speed and dust generation within 300 ft (91 m) of the plants is
currently likely to be low, slow, and sporadic, because reclamation and
pad/road construction within the occurrences is mostly, but not
entirely, completed. Dust levels could increase at any time depending
on the amount of energy development in the vicinity. We believe that
dust deposition has an impact on the plants, but available information
does not indicate that the impact rises to the level of a threat.
Other indirect impacts to Penstemon debilis can occur due to loss
of pollinator habitat. P. debilis requires an insect pollinator to
reproduce (McMullen 1998, p. iii). Prior to the energy boom, McMullen
(1998) concluded that pollinators for P. debilis were generalists and
were not limiting at that time. However, Tepedino (2009) described the
ways in which the pollination biology of another Piceance Basin rare
plant, Physaria obcordata (Dudley Bluffs twinpod), is impacted by
energy development. He described that any energy development that
reduces the general level of available floral vegetation has a
detrimental effect on pollinators' ability to reproduce, because fewer
flowers provide less nectar to feed the pollinators, subsequently
resulting in fewer pollinators and reduced ability of the dependent
plant, such as P. debilis, to produce seeds (Tepedino 2009, pp. 16-17).
The degree of impact on P. debilis from loss of pollinator habitat due
to energy development is unknown, but is not likely to rise to the
level of a threat, because disturbance of vegetated areas adjacent to
P. debilis occurrences is not nearly as extensive as the foraging
distance of the pollinators.
A large parcel of land including habitat occupied by both Anvil
Points occurrences was leased by the BLM for oil and gas development in
August 2008 (DeYoung 2008b, pers. comm.; DeYoung 2008c, pers. comm.;
BLM 2008a, p. 1). This proposed development is described in the Roan
Plateau Resource Management Plan (RMP) Amendment, which is still being
contested in court by environmental groups (Williams 2010). Increased
energy exploration in the Anvil Points Mine area may increase
maintenance and vehicle access on the unstable road that transects the
Penstemon debilis occurrence and may increase the likelihood of impacts
to P. debilis due to construction of additional

[[Page 45065]]

roads and other facilities associated with oil and gas exploration.
Despite ongoing disturbances, Anvil Points Mine is the largest
occurrence on Federally managed land. If impacts continue to modify or
curtail this habitat, the species is likely to become in danger of
extinction.
Oil Shale Extraction and Mine Reclamation
Oil shale mining has likely impacted Penstemon debilis occurrences.
Access roads for the mines at Anvil Points and Mt. Logan were cut
across cliff sides occupied by the plants, displacing the loose shale
habitat and destroying plants. Oil shale extraction activities occurred
on the Roan Plateau in the early 1980s and into the 1990s (COBiz 2008,
pp. 3-4). Because P. debilis was not identified as a species until
1987, we have no record of the pre-mining occurrence status. However,
we believe the plants were present at these sites prior to mining
because some are still present now. The plants were likely heavily
impacted by mine operations within their habitat, and we think that the
occurrences are likely to have recovered to a far smaller population
size on a reduced area of habitat (see Factor E for discussion of
inherent risk of small population size).
Commercial oil shale extraction has not yet proven to be
economically viable, and current research and development efforts no
longer focus exclusively on surface mining of oil shale rock on the
Roan Cliffs (COBiz 2008, pp. 3-4). In November 2008, the BLM issued its
record of decision approving resource management plan (RMP) amendments
to allow oil shale leasing in the Piceance Basin (BLM 2007a, p. 1). The
known Penstemon debilis occurrences are not within the area that BLM
has currently identified as available for oil shale leasing (BLM 2007a,
p. 14). It is unknown when oil shale extraction will become
economically viable. If commercial oil shale production does become
economically viable, we expect a renewed interest in extracting shale
from the cliffs of the Roan Plateau because the shale is located
conveniently near the surface. Recent impacts to the Anvil Points Mine
plants occurred due to energy production research and removal of core
samples by an oil shale research and development company (discussed
below), and at the Anvil Points Mine and Mt. Logan Mine occurrences due
to mine reclamation and closure efforts (DeYoung 2009a, pers. comm.;
Mayo 2006, pp. 1-4).
The BLM conducted mine reclamation actions under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) (42
U.S.C. 9601 et seq.), commonly known as Superfund, to remove health and
safety hazards from Anvil Points Mine. Actions included closing access
to the passages leading into the mine and removing lead mine tailings
soil on the mine bench (Goodenow 2008, pers. comm.). It is unknown
whether the lead in the soil is a threat to Penstemon debilis. An
estimated 350 plants were on the mine bench where the reclamation was
done (CNHP 2010a, p. 19). Eighty-eight plants are known to have been
directly impacted by Anvil Points Mine reclamation actions permitted by
BLM during 2008-2009 (DeYoung 2009b, pers. comm.; Bennett 2010, pp. 1-
2). Of the 88, 21 plants that would have been crushed by heavy
equipment were transplanted, 56 were covered by matting intended to
reduce soil disturbance (DeYoung 2009b, pers. comm.; DeYoung 2009c,
pers. comm.), and 11 plants were either covered with tires or screened
from human activities with construction fencing (Bennett 2010, p. 2).
As of December 2009, 17 of the 88 plants were either dead or
unaccounted for (Bennett 2010, p. 2). Any loss of plants at Anvil
Points Mine is a threat to the species because of the small size of the
entire population, but we expect less disturbance at the site now that
reclamation is completed.
The BLM also allowed an oil shale research and development company
to conduct research in the Anvil Points Mine, a project area containing
the Anvil Points Mine occurrence (Ewing 2008a, pp. 4-6). This research
consisted of taking high resolution photographs of the geologic
formation visible from the sides of the mine, and removal of stored
core samples. The project included vehicle trips up the road every day
for 1 month and directly impacted P. debilis individuals growing in the
road immediately outside the mine (Ewing 2008a, pp. 4-6). The roads
transecting the occurrence are on shifting shale talus slopes and are
frequently subject to rockslides and mudslides, which require the road
to be maintained frequently. Three plants out of about 350 are known to
have been destroyed by the road maintenance conducted under this permit
(DeYoung 2009a, pers. comm.). The BLM believes that some additional
plants may have been trampled by unauthorized access to an area that
was fenced off during the research period; however, it is unclear how
many plants were disturbed (DeYoung 2008c, pers. comm.). In addition to
the direct impacts, the road maintenance required to allow this level
of traffic made occupied P. debilis habitat more accessible to the
public, which could result in further trampling by humans and vehicles
(Ewing 2008a, pp. 4-7).
The Mt. Logan Mine occurrence of Penstemon debilis is primarily
located on land owned by Oxy oil shale division, with a portion of the
occurrence occupying BLM land. This occurrence is perched on a steep,
unstable slope above a road that is used for access to an oil shale
mine reclamation project and for ongoing maintenance of the site.
Plants were presumably removed to construct and maintain the road
during past mining operations. Several plants out of 513 total on this
steep road bank were dangling by their roots in 2005 due to road
widening during reclamation (Mayo 2006, pp. 1-4). The road was widened
farther, and these plants were gone by 2006 (Mayo 2006, p. 1). Mine
reclamation actions destroyed about 30 of the 513 plants at another
portion of this occurrence by burying them in topsoil (Ewing 2009a, p.
4). This site also contains noxious weeds associated with the
disturbance, but it is unknown whether the weeds will pose a threat to
P. debilis (Ewing 2009a, p. 4). The BLM portion of this occurrence was
included in an oil and gas lease parcel nominated for sale; however,
BLM deferred the sale of the lease parcel until completion of their RMP
revision (now scheduled for May 2013) and until the Service publishes a
determination concerning the status of the species (CNE 2005, p. 1;
Lincoln 2009, pers. comm.). We believe that the 513 plants counted at
this occurrence are a remnant of a larger population that existed prior
to mining and reclamation activities. The potential for further loss of
plants at this location is an ongoing threat that could contribute to
the species becoming in danger of extinction within the foreseeable
future.
Road Construction and Maintenance and Vehicle Access
The Anvil Points Mine occurrence also is impacted during road
stabilization work by Garfield County, which is done to maintain
ongoing access to a communications transmitter tower located within
occupied habitat for Penstemon debilis on the mine bench. We expect
that continued vehicle access through the plant habitat will destroy a
few plants at a time when vehicles turn around and workers walk on the
shale slopes. Maintenance and use of the road prevents reclamation of
the road bed, which would allow loose

[[Page 45066]]

shale to cover the road and reclaim the plant habitat along the mine
bench.
The Mt. Logan Road occurrence, located on the ROW above a heavily
traveled road near the Logan Mine occurrence, had 10 plants in 1996, of
which only 3 plants were found in 2005 and again in 2010 (CNHP 2010, p.
22). This occurrence has no barriers to shield the plants from heavy
dust generated by truck traffic (CNHP 2010a, p. 22; DeYoung 2009e,
pers. comm.; Ewing 2009a, p. 3). As a result of these ongoing threats
and the low number of plants at the site, we consider this occurrence
to be nonviable.
Summary of Factor A
In summary, three of the four viable occurrences (Mt. Callahan and
Mt. Callahan Saddle Natural Areas and Mt. Logan Mine) are on lands
owned wholly or partially by energy development companies. Some
individuals at the fourth occurrence (Anvil Points Mine), on BLM land,
have been subject to transplanting or destruction as a result of a mine
closure project and road maintenance. Over the past 6 years, oil and
gas exploration and production has increased substantially in the area
containing the habitat for Penstemon debilis, making it likely that the
species will become in danger of extinction in the foreseeable future.
The pace of new development slowed in 2009 because of a variety of
factors, but increased again in 2010 (COGCC 2010, p. 17). P. debilis
grows on steep shifting slopes, and roads through P. debilis habitat
are unstable and require frequent maintenance, which destroys plants.
Plants seem to be able to recolonize their habitat after disturbance;
however, recolonization is slow, and would not be able to keep pace
with rapid development. For these reasons we consider destruction and
modification of the species' habitat for natural gas production, oil
shale mining, mine reclamation, road maintenance, exploration
activities, and associated impacts resulting from increased vehicle
access to the occurrences to constitute an ongoing threat to P. debilis
that may cause the species to become in danger of extinction within the
foreseeable future.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Activities resulting in overutilization of Penstemon debilis plants
for commercial, recreational, scientific, or educational purposes are
not known to exist. Therefore, we do not consider overutilization for
commercial, recreational, scientific, or educational purposes to be a
threat to the species now or in the foreseeable future.

C. Disease or Predation

Seed predation of Penstemon debilis by small mammals is very low
(McMullen 1998, pp. 39-40). Grazing, predation, and disease are not
known to affect P. debilis. Therefore, we do not consider disease or
predation to be a threat to the species now or in the foreseeable
future.

D. The Inadequacy of Existing Regulatory Mechanisms

Local Laws and Regulations
Approximately 66.6 percent of Penstemon debilis occupied habitat
occurs on private lands. We are not aware of any city or county
ordinances or zoning that provide for protection or conservation of P.
debilis or its habitat. Garfield County continues to maintain and
enlarge a communications transmitter site within the Anvil Points Mine
occurrence without a permit from BLM. Existing County ordinances fail
to address appropriate placement of communications transmitters to
avoid impacts to sensitive species. The impact may rise to the level of
a threat if the transmitter site is allowed to remain and expand.
State Laws and Regulations
No State laws or regulations protect rare plant species in
Colorado.
Federal Policy and Management
The BLM manages the habitat for about 19.4 percent of the Penstemon
debilis plants, on 33.3 percent of the occupied habitat. Candidate
species are managed by BLM as sensitive species. BLM has a policy for
management of sensitive species that recommends avoidance and
minimization of threats to plants and habitat, as well as habitat
conservation assessments and conservation agreements (BLM 2008c, pp. 8,
36-38). No habitat conservation assessments or conservation agreements
have been formalized for P. debilis.
The Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1701
et seq.) directs BLM, as part of the land use planning process, to
``give priority to the designation and protection of areas of critical
environmental concern'' (43 U.S.C. 1712(c)(3)). The FLPMA defines areas
of critical environmental concern (ACECs) as ``areas within the public
lands where special management attention is required * * * to protect
and prevent irreparable damage to important historic, cultural, or
scenic values, fish and wildlife resources or other natural systems or
processes, or to protect life and safety from natural hazards'' (43
U.S.C. 1702 (a)). Designation as an ACEC recognizes an area as
possessing relevant and important values that would be at risk without
special management attention (BLM 2006, pp. 3-110). The ACEC
designation carries no protective stipulations in and of itself (BLM
2006, pp. 2-65).
Following an evaluation of the relevance and importance of the
values found in potential ACECs, a determination is made as to whether
special management is required to protect those values and, if so, to
specify what management prescriptions would provide that special
management (BLM 2006, pp. 3-111). The records of decision (RODs) for
the Roan Plateau RMP Amendment were signed June 8, 2007, and March 12,
2008. The March 12, 2008, ROD designated the Anvil Points ACEC, as an
area for management of sensitive resources including Penstemon debilis
(BLM 2008b, ROD p. 4). The ROD lists as an objective for the Anvil
Points ACEC to ``protect occupied habitat and the immediately adjacent
ecosystem processes that support candidate plants.'' This ROD also
authorizes oil and gas development in the ACECs, making the portions of
these areas that are not currently leased available for lease (BLM
2008b, ROD p. 2). Anvil Points ACEC covers most of the formerly
occupied occurrence area at Anvil Points Rim, and the entire Anvil
Points Mine occurrence. At present, no oil and gas development
activities are allowed. Implementation of the RMP amendment, including
lease development, is dependent on the outcome of litigation.
In order to protect Penstemon debilis in the ACEC, a no surface
occupancy (NSO) and no ground disturbance (NGD) stipulation was
established for both Anvil Points P. debilis occurrences (BLM 2007b,
ROD p. 26). The term NGD applies to all activities except oil and gas
leasing and permitting, while the term NSO applies only to oil and gas
leasing and permitting (BLM 2008b, ROD p. 6). The NSO designation
prohibits long-term use or occupancy of the land surface for fluid
mineral exploration or development to protect identified resource
values (BLM 2006, pp. 2-3). This designation means that an area is
protected from permanent structures or long-term ground-disturbing
activities (i.e., lasting longer than 2 years) (BLM 2006, pp. 2-3). For
example, an NSO designation would preclude construction of a well pad
(because it would last longer than 2 years) but not a typical pipeline
(because it would be revegetated within 2 years) (BLM 2006, pp. 2-3).
Also, an

[[Page 45067]]

NSO does not preclude the extraction of underlying fluid minerals if
they can be accessed from outside the area by directional drilling (BLM
2006, pp. 2-3). Directional drilling may not disturb the overlying
surface, including Penstemon debilis habitat. Except for specified
situations, individual NSOs may include exceptions so that BLM may
allow a ground-disturbing activity if it meets specific, stated
criteria (BLM 2006, pp. 2-3). For example, the NSO designation for
these occurrences allows the BLM to grant exceptions for short-term
ground disturbing activities if a conference with the Service indicates
that proposed activity would not impair maintenance or recovery of the
species (BLM 2007c, pp. F6-F7).
The protections provided by the NSO/NGD provision of the ACEC
designation are not adequate to provide for maintenance of the Anvil
Points Mine occurrence because although BLM may and usually does
discuss plans with the Service, they are not required to consult with
the Service and ensure that proposed activity would not impair
maintenance or recovery of the species prior to authorizing an
exception to the NSO/NGD (BLM 2007a, pp. F6-F7). Consultation for a
candidate or sensitive species is not mandatory. Despite NSO/NGD
provisions, projects have proceeded that resulted in destruction of
Penstemon debilis individuals. Other actions with likely impacts to P.
debilis are still being considered by BLM (DeYoung 2010, pers. comm.).
This ability to proceed with actions that cause negative impacts to the
species indicates that the NSO/NGD provisions do not fully protect P.
debilis and its habitat.
Recent examples demonstrating the use of the NSO/NGD provisions
were discussed under Factor A. All of these examples refer to the Anvil
Points Mine occurrence of Penstemon debilis:
(1) The BLM approved work under the CERCLA to remove health and
safety hazards from the Anvil Points Mine occurrence. While the BLM
conferred with the Service and minimized damage to the plants ``as much
as was practicable,'' hazards to humans take precedence over protecting
candidate plant species. This project resulted in direct impacts to at
least 88 Penstemon debilis individuals (DeYoung 2009c, pers. comm.).
(2) Also at the Anvil Points Mine, the BLM is still considering
granting permission for continued maintenance of the Garfield County
transmitter tower access road (DeYoung 2009b, 2010 pers. comm.).
Maintaining the existing tower access road rather than relocating it
increases the likelihood of destroying P. debilis plants and prevents
the recolonization of plants in the current road bed.
(3) The BLM has authorized oil shale research projects in the past
at the Anvil Points Mine (Ewing 2008a, p. 4), which led to the
destruction of P. debilis plants (BLM 2007c, pp. F6-F7; DeYoung 2009a,
pers. comm.).
(4) The land containing the Anvil Points Mine occurrence was leased
for oil and gas development under the BLM August 2008 lease sale that
is still awaiting a court decision (DeYoung 2008b, p. 1; BLM 2008b, p.
1; Ewing 2008a, p. 7). Despite plant protections built into the RMP
amendment that is now being challenged, increased energy exploration in
the Anvil Points Mine area may increase maintenance and vehicle access
and consequently increase the likelihood of destroying plants
Summary of Factor D
We found that existing regulatory mechanisms and agency policies do
not address the primary threats to Penstemon debilis and its habitat.
The species was afforded some protection on Federal lands as a
candidate species; however, candidate status has not prevented impacts
and threats to the species from oil and gas development and mine
reclamation. Federal natural resource laws do not protect Penstemon
debilis because they are not regulatory unless the plant is proposed or
listed, and projects have occurred that have continued to directly
impact the species. Furthermore, because much of the plant population
occurs on non-Federal lands, P. debilis has no regulatory protection
for approximately 81 percent of the total estimated plants. Therefore,
we determined that the existing regulatory mechanisms do not adequately
address the primary threats to the species.

E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence

Failure of Transplants
The Anvil Points Rim occurrence, which formerly included several
hundred plants on BLM land, was reduced to zero plants in 1999 for
unknown reasons (CNHP 2010a, pp. 11-12). It appears that the decline of
this occurrence was a result of natural processes, including
competition by surrounding native vegetation, which includes
Chrysothamnus viscidiflorus (yellow rabbitbrush) (DeYoung 2008a, pers.
comm.; CNHP 2010a, p. 12). Fifty-three Penstemon debilis seedlings
grown off site from seeds were introduced to Anvil Points Rim in 1996.
Ten survived until 2001, but all were gone by 2005. Two mature plants
found in 2010 appear to be overlooked survivors from the original
population (CNHP 2010a, p. 11). Monitoring failed to show a cause for
the decline of this occurrence (DeYoung 2008a, pers. comm.).
Small Population Size
Penstemon debilis population sizes are small, and the smaller the
population, the more likely extinction is in any given period of time
(Shaffer 1987, p. 70). All occurrences of P. debilis grow on a 17-mi
(27-km) stretch of the rim of the Roan Plateau in Garfield County,
Colorado (Ewing 2008a, p. 7). The two largest occurrences are within 2
mi (3 km) of each other (Ewing 2008a, p. 7). A species with such a
small range is particularly susceptible to extirpation from a
stochastic event such as a rockslide or severe hail storm (McMullen
1998, p. 3). This increased susceptibility is due to the likelihood
that, although stochastic events are often localized in severity, such
a localized event would likely impact all occurrences of the species,
rather than just a small portion of the occurrences, as may be expected
for a species with a larger range. For example, the newly discovered
Smith Gulch location is small (estimated 50 plants) and, because of its
positioning in a drainage, has a high potential for being destroyed by
a rain event (DeYoung 2009d, pers. comm.).
Habitat Fragmentation--Genetic Diversity
In addition, the fragmentation of P. debilis habitat by human-
related activities threatens to reduce the species to mosaics of small
populations occurring in isolated habitat remnants. Foraging
pollinators spend more time within large populations than small
populations, so sensitive plant species with small populations (fewer
than 50 individuals) are more likely to have a lower seed set per
individual than larger ones, and to suffer genetic problems such as
genetic drift and inbreeding depression due to losses of individuals in
such events such as those described under Factor A (McMullen 1998, p.
3; Ellstrand & Elam 1993, pp. 226, 228). Genetic diversity of P.
debilis is low compared to other species of plants with similar life-
history traits (Wolfe 2010, p. 1), and thus the species is more
susceptible to genetic problems.

[[Page 45068]]

Climate Change and Drought
Climate change could potentially impact Penstemon debilis. The
limited geographic range of the oil shale substrate that makes up the
entire Penstemon debilis habitat could limit the ability of the species
to adapt to changes in climatic conditions by progressive establishment
of new populations.
Incidental disturbance by humans and stochastic events such as
drought, landslides, or encroaching vegetation can impact Penstemon
debilis. Climate change could exacerbate these factors, causing them to
pose a threat to P. debilis; however the current data are not reliable
enough at the local level for us to draw conclusions regarding the
imminence of climate change threats to P. debilis. The collective
effects of small population size, fragmented habitat, genetic
isolation, inability to shift with climate changes, and failure of
reintroduction efforts make the species vulnerable to destruction and
modification of its habitat, to the extent that it is likely to become
endangered within the foreseeable future.
Cumulative Impacts
Some of the threats discussed in this finding could work in concert
with one another to cumulatively create situations that potentially
impact Penstemon debilis beyond the scope of the combined threats we
have already analyzed. Destruction and modification of habitat, and
fugitive dust from truck traffic, could reduce the number of other
species of blooming plants that attract pollinators and could destroy
the ground-nesting habitat needed by bees. A reduction in pollinators
could cause P. debilis to produce fewer seeds. Such cumulative impacts
may lower seed production and reduce the number of plants. We do not
have documentation that these cumulative impacts are currently
threatening the species.
Summary of Factors
The primary factors threatening Penstemon debilis are the present
and threatened destruction, modification, or curtailment of its habitat
and range, and the inadequacy of existing regulatory mechanisms to
address the primary threats to the species, exacerbated by the
collective impacts described under Factor E. These factors pose
imminent threats to the species because they are ongoing. The threats
are moderated because 39.8 percent of the occupied habitat is protected
by voluntary conservation agreements, and 33.3 percent is managed to
minimize some of the threats, although 26.9 percent has no special
management or protection. We believe that the two main occurrences of
the species will be protected within the State Natural Areas because
Oxy is implementing best management practices during development. While
these actions may not prevent the species from becoming endangered when
energy demands rise again, the species is not likely to become in
danger of extinction within the foreseeable future.

Species Information--Phacelia submutica

Phacelia submutica is a rare annual plant endemic to clay soils
derived from the Atwell Gulch and Shire members of the Wasatch
Formation in Mesa and Garfield Counties, Colorado. The 9 populations
and 22 known occurrences of the plant occupy a total of 625.9 ac (253.3
ha) (CNHP 2010a, pp. 24-82; Service 2011a, p. 7). All occurrences
consist of small patches of plants on uniquely textured, shrink-swell
clay soil separated by larger areas of similar soils that are not
occupied by P. submutica. The estimated total number of plants ranges
from 7,767 to 68,371 per year, depending on growing conditions. In some
years, surveyors have failed to find any plants. The species depends on
its seed bank to survive for one or many years, again depending on
growing conditions.
Taxonomy
Phacelia submutica was first described by Howell based on specimens
collected from the town of DeBeque, Mesa County, Colorado, in 1911 and
1912 (Howell 1944, pp. 370-371). Halse (1981, pp. 121, 129, 130)
reduced it to varietal status as P. scopulina var. submutica. Halse's
nomenclature has been challenged by O'Kane (1987, p. 2), who claimed
Halse used inadequate collection materials and that P. submutica is
geographically isolated from P. scopulina (O'Kane 1987, p. 2; 1988, p.
462). Phacelia submutica is the recognized species name in current
floristic treatments in Weber and Wittmann (1992, p. 98; 2001, p. 203)
and by the Director of the Biota of North America Program (Kartesz
2008, pers. comm.). While the Integrated Taxonomic Information System
(2001) database cites John Kartesz as the expert source for this
species, it is not updated with his currently accepted name for the
species: Phacelia submutica (Kartesz 2008, pers. comm.). Because the
weight of evidence indicates that Phacelia submutica is the appropriate
species name, we are listing the species with this nomenclature.
Phacelia is included in the Hydrophyllaceae (waterleaf) family. Recent
molecular data suggest that this family should be combined in an
expanded Boraginaceae (borage) family. Conflicting views exist on the
configuration of this larger Boraginaceae. The lead author of the
family treatment for the upcoming Flora of North America has chosen to
retain the Hydrophyllaceae. Therefore, we will retain Phacelia in the
Hydrophyllaceae family for this final rule.
Description
Phacelia submutica is a low-growing, herbaceous, spring annual
plant with a tap root. The stems are typically 0.8 to 3 in (2 to 8 cm)
long, often branched at the base and mostly lying flat on the ground as
a low rosette (Howell 1944, pp. 371-372). Stems are often deep red and
more or less hairy with straight and stiff hairs. Leaves are similarly
hairy, reddish at maturity, 0.2 to 0.6 in (5 to 15 mm) long, egg-shaped
or almost rectangular with rounded corners, with bases abruptly
tapering to a wedge-shaped point. Leaf margins are smooth or toothed.
The tube-shaped flowers are yellowish white, on short stems; the 5
petals are 0.16 to 0.19 in (4-5 mm) long; the stamens do not protrude
beyond the petals. The style is 0.04 to 0.06 in (1 to 1.5 mm) long and
nearly hairless, and the seed capsules do not have a short, sharply
pointed tip (Howell 1944, pp. 371-372; Halse 1981, p. 124). The
elongated egg-shaped seeds are 0.6 to 0.8 in (1.5 to 2 mm) long with 6
to 12 crosswise corrugations, and are blackish brown and somewhat
iridescent (Howell 1944, p. 370; Halse 1981, p. 130; O'Kane 1987, p.
3).
Seed Bank
Phacelia submutica plants flower between late April and late June
and set seed from mid-May through late June. Individuals finish their
life cycle by late June to early July, after which time they dry up and
disintegrate or blow away, leaving no indication that the plants were
present (Burt and Spackman 1995, p. 23). The species grows in a habitat
with wide temperature fluctuations, long drought periods, and erosive
saline soils. Upon drying, cracks form in the shrink-swell clay soils.
Seeds plant themselves by falling into the cracks that close when
wetted, thus covering the seeds (O'Kane 1988, p. 20).
Phacelia submutica seeds can remain dormant for 5 years (and
probably longer) until the combination and timing of temperature and
precipitation are optimal for germination (CNHP 2010a, pp. 24-82). The
ideal conditions required for seed germination are unknown, but it is
likely that germination depends not on total

[[Page 45069]]

precipitation but on the temperature after the first major storm event
of the season (Levine et al. 2008, p. 795). Rare annuals that flower
every year are subject to extinction under fluctuating conditions,
because they exhaust their seed reserves (Meyer et al. 2006, p. 901).
Rare ephemeral annuals, such as P. submutica, that save their seed bank
for the best growing conditions are more resilient to fluctuating
conditions. P. submutica numbers at Horsethief Mountain fluctuated from
1,700 plants in 1986, to 50 in 1992, up to 1,070 in 2003, and down to
only a few from 2006 to 2008 (CNHP 2010a, pp. 49-50). The fluctuation
in numbers indicates that many seeds remain dormant in the seed bank
during years when few plants can be found. We do not know how long the
seeds can remain viable in the soil. Although plant sites differ in
numbers of flowering plants each year, there are no observations of
site expansion.
Habitat
Phacelia submutica is restricted to exposures of chocolate to
purplish brown and dark charcoal gray alkaline clay soils derived from
the Atwell Gulch and Shire members of the Wasatch Formation (Donnell
1969, pp. M13-M14; O'Kane 1987, p. 10). These expansive clay soils are
found on moderately steep slopes, benches, and ridge tops adjacent to
valley floors of the southern Piceance Basin in Mesa and Garfield
Counties, Colorado. On these slopes and soils, P. submutica usually
grows only on one unique small spot of ground that shows a slightly
different texture, color, and crack pattern than the similar
surrounding soils (Burt and Spackman 1995, p. 15). We do not have a
precise scientific description of the soil features required to support
this species. The natural shrink-swell cracking process creates the
conditions needed for the plants and seed bank to thrive.
Distribution
The currently known occupied habitat where the plants grow occurs
on about 625.9 ac (253.3 ha) (CNHP 2010a, pp. 24-82). About 80.9
percent of the occupied habitat is on lands managed by the BLM, 11.9
percent is on private lands, 6.4 percent is on lands managed by the
USFS, and 0.7 percent is on lands managed by the Colorado Division of
Wildlife (CDOW) (Service 2011a, pp. 6-7). A general range encompassing
outlying occurrences of Phacelia submutica includes about 82,231 ac
(34,896 ha) (Service 2011a, p. 13). The growing town of DeBeque and
about 10 mi (16.4 km) of Interstate 70 and the Colorado River bisect
the species' range.
Phacelia submutica is classified by the CNHP as a G2 and S2
species, which means it is imperiled across its entire range and within
the State of Colorado (CNHP 2010b, p. 12). The CNHP ranks the quality
of each occurrence on a scale of A to E, with A meaning an excellent
occurrence that is abundant and viable; B, C, and D meaning good, fair,
and poor, respectively; and E meaning the occurrence still exists, but
no ranking information is available. Historical records (H rank in
Table 3, below) have not been revisited for 20 years or more. Ranks are
based on the viability and number of plants, the amount of
anthropogenic (human) disturbance, and the amount of weed cover and
intact habitat (CNHP 2010b, pp. 12-13).
No occurrences of Phacelia submutica have been found beyond the
described habitat and range. Surveys for P. submutica have been
conducted outward from DeBeque as far as the exposed soil members
extend within the geologic formation (Burt and Spackman 1995, p. 14).
Surveys in 2010 added 148 ac (60 ha) of new locations within the known
range of the species.

Table 3--Phacelia submutica Occurrences Within Populations by Landownership (acres (ac) (hectares (ha))
(CNHP 2010a, pp. 24-82, observation dates 1982 to 2010; WestWater Engineering 2007, pp. 16, 17, 19, 27; Kirkpatrick 2011, pers. comm.; Potter 2010,
Wenger 2010; Lyon 2010, pers. comm.; Service 2011a; CNHP 2010b, pp. 12-13)
--------------------------------------------------------------------------------------------------------------------------------------------------------
High counts
Population occurrences estimates Low counts Habitat ac Habitat ha Viability rank* Owner
--------------------------------------------------------------------------------------------------------------------------------------------------------
SULPHUR GULCH:
Sulphur Gulch................. 70 0 4.4 1.8 H BLM.
Winter Flats Sulphur Gulch.... 35 25 9.7 3.9 D BLM.
PYRAMID ROCK:
Pyramid Rock.................. 3,050 1 213.6 86.4 BC BLM.
Pyramid Ridge Coon Hollow 1,500 2 55.4 22.4 B BLM.
South.
Coon Hollow/B/C............... 11,000 42 58.4 23.6 AB BLM.
Mount Low West of DeBeque..... 10,000 300 15.9 6.4 B BLM, Private.
Dry Fork Roan Creek........... 800 100 24.2 9.8 BC BLM, Private.
Bloat Gulch Logan Wash........ 5,820 0 50.2 20.3 H BLM, Private.
Coon Hollow................... 200 150 2.1 0.8 H BLM.
ROAN CREEK:
Roan Creek.................... 195 21 5.8 2.3 C Private.
DEBEQUE
DeBeque West.................. 500 0 14.8 6.0 H BLM, Private.
DeBeque East Cemetery Road.... 20 0 36.2 14.6 D BLM.
MOUNT LOGAN:
Mount Logan................... 50 5 7.0 2.8 C BLM.
ASHMEAD DRAW:
South of DeBeque.............. 17 0 3.9 1.6 H BLM.
DeBeque Reservoir Ashmead Draw 210 0 16.8 6.8 C BLM, Private.
BAUGH RESERVOIR:
Baugh Reservoir............... 1,000 0 6.1 2.5 H BLM, Private.
HORSETHIEF MOUNTAIN:
Jerry Gulch................... 300 200 3.2 1.3 C Private.
Moffat Gulch.................. 20 0 2.0 0.8 H BLM.
S of Horsethief Creek......... 55 10 2.0 0.8 C BLM.
Housetop Mtn. Jerry Gulch 4,000 235 20.4 8.2 B BLM, USFS.
Atwell Gulch.

[[Page 45070]]

Horsethief Mtn. NW.-SW.-WSW. 14,429 5,300 69.1 28 C USFS, BLM, Private.
Shire Gulch.
ANDERSON GULCH:
Anderson Gulch Round Mtn...... 15,100 1,376 4.5 1.8 A Private, State.
---------------------------------------------------------------------------------------------------------------------
Totals.................... 68,371 7,767 625.9 253.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
* An A indicates those occurrences with the highest number of individuals and best habitat, while a D represents those occurrences with the fewest
individuals and degraded habitat. An H represents an occurrence that has not been re-visited in over 20 years.

Summary of Factors Affecting Phacelia submutica

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

Phacelia submutica is threatened with destruction and modification
of its seed bank and habitat due to the following issues: modification
of areas for oil and natural gas exploration and production,
development of the Westwide Energy Corridor, increased access to the
habitat by off-road vehicles (ORVs), soil and seed disturbance by
livestock and wild ungulates, and proposed water reservoir projects.
All known occurrences are in the midst of the second largest natural
gas-producing area in Colorado (COGCC 2010).
Natural Gas Development
About 78 percent of the habitat for the species and 67 percent of
the entire range of Phacelia submutica are on BLM lands currently
leased for oil and gas drilling (Ewing 2009, map). An additional 65 ac
(26 ha) of habitat (10 percent) may be opened to natural gas
development by BLM pending development of a new RMP for the Grand
Junction Field Office in 2013 (Ewing 2008a; BLM 2005, p. 5). About 3
percent of the habitat is on private land owned by energy companies
(Burt and Spackman 1995, p. 25). Although the sale of oil and gas
leases by BLM does not directly impact rare plant habitat, it indicates
the intention to continue and increase the level of development in an
area that covers a large portion of the range of P. submutica.
Likewise, the Colorado Oil and Gas Conservation Commission (COGCC)
issues permits to drill that indicate imminent development at specific
sites on private and Federal lands (COGCC 2009b, pp. 1-3). COGCC issued
10 new drilling permits in 2009. Within the range of P. submutica,
there are 178 natural gas wells; 60 of these wells are located within
the same 640 ac (259 ha) section as 18 of the 22 occurrences of the
species (Ewing 2009b, map).
Five occurrences of Phacelia submutica are located on BLM land in
an area called South Shale Ridge that covers more than a third of the
known range for this species (BLM 2005, p. 5). Part of South Shale
Ridge was recommended as an ACEC for protection of P. submutica in
1995, but was not designated as an ACEC (Burt and Spackman 1995, p. 36)
in that area. Portions of South Shale Ridge that were withheld from
leasing in the past were leased for oil and gas development in November
2005 (BLM 2005, p. 5). These leases were subsequently deferred pending
development of a new RMP for the Grand Junction Field Office (Ewing
2008c, pers. comm.; BLM 2005, p. 5). The new RMP is now scheduled for
May 2013, and the leases are still on hold (Ewing 2011, pers. comm.).
If the BLM sells these leases, then 8 ac (3 ha) of occupied P.
submutica habitat within about 65 ac (26 ha) of suitable habitat will
be newly opened to natural gas development in a previously undeveloped
area (Ewing 2009, map), with additional impacts anticipated from
associated roads and related development.
Pyramid Rock is adjacent to South Shale Ridge, and the Pyramid Rock
occurrence of Phacelia submutica is within the BLM Pyramid Rock ACEC,
including an estimated 1 to 3,050 plants (depending on the year) within
214 ac (86 ha) of habitat (CNHP 2010a, p. 29; Wenger 2009, pp. 1-11;
Wenger 2010, p. 3). Stipulations of no new surface occupancy or ground
disturbance apply to this ACEC for protection of candidate, proposed,
and listed plant species. These stipulations do not apply to sensitive
species. However, due to the possibility of exceptions being granted,
we cannot predict with any degree of certainty what stipulations will
actually be applied to the plant or its habitat that ensure the long-
term conservation of the species. The BLM installed cable fence in 2007
to deter ORVs from crossing habitat for the Federally threatened cactus
Sclerocactus glaucus (Colorado hookless cactus) and P. submutica. Only
a few ORVs have left tracks under the fence and across P. submutica
habitat. The BLM excluded this ACEC from a South Shale Ridge lease sale
in 2005 (BLM 2005, p. 5). P. submutica plants have not been directly
impacted since the fence was installed, and existing pipeline and roads
remain outside the fence. The ACEC has provided some protection thus
far for about 4 percent of the plants (see Table 3 above).
We recommend buffers of 656 ft (200 m) for pipeline ROWs between
the edge of disturbance and suitable plant habitat to protect the
plants from destruction by vehicles that stray outside of the project
area, runoff, erosion, dust deposition, or other indirect effects such
as destruction of pollinator nesting habitat. In spite of such efforts,
pipeline ROWs exist within 20 ft (6 m) and 100 ft (30 m) of known P.
submutica occurrences (Lincoln 2008, pers. comm.).
The ongoing threats to habitat that are associated with oil and gas
development include well pad and road construction; installation of
pipelines; and construction of associated buildings, holding tanks, and
other facilities. All of these actions would destroy the seed bank of
Phacelia submutica and modify its habitat so that the plants could no
longer grow in these areas.
Westwide Energy Corridor
The Energy Policy Act of 2005 (42 U.S.C. 15801 et seq.) directs the
Secretaries of Agriculture, Commerce, Defense, Energy, and the Interior
to designate energy transport corridors for oil, gas, and hydrogen
pipelines and electricity transmission and distribution facilities on
Federal lands in certain western U.S. States. A portion of the

[[Page 45071]]

designated Westwide Energy Corridor crosses 16,326 ac (6,621 ha) of BLM
land within the range of Phacelia submutica. Nine of the species' 22
occurrences are located within this energy corridor (Westwide 2009,
map; Ewing 2009, map). Pipeline and transmission line routes along the
energy corridor are not yet identified, but it is not feasible that all
habitat for P. submutica will be avoided as the corridor continues to
be developed.
Cumulative Impacts of Energy Development
Energy development activities described above are occurring in
close proximity to Phacelia submutica locations (WestWater Engineering
2004, p. 11). Oil and gas pipelines, well pads, and access roads are
present on 11 P. submutica occurrences (CNHP 2010a, pp. 24-82).
Frequently travelled roads bisect and cross the edges of nine
occurrences. It is likely that some of the seed bank was displaced or
destroyed to build the roads and pipelines. On Federal lands, direct
impacts to known plant locations are mostly being avoided by careful
placement of pipelines, well pads, and associated facilities, due to
the candidate status of the species.
Our concern is primarily for the cumulative impacts of energy
development. When all of the oil and gas wells are connected to the
system of local pipelines, roads, and pumping stations, in combination
with cross-country transmission lines and pipelines, more ROWs will be
necessary. Under these conditions, it is difficult to protect occupied
or potential habitat for P. submutica. The natural shrink-swell
cracking process creates the soil conditions needed for P. submutica
and its seed bank to thrive; however, the natural soil surface
structure is fragile and easily disturbed. Blading of the top few
inches of soil during well pad and road construction, installation of
underground pipelines, and construction of associated buildings,
holding tanks, and other facilities alter the unique soil structure,
especially when it is wet, and may disturb, damage, or remove seed
banks that are critical to the survival of this species. Any ground
disturbance that churns or compacts the soil or changes the shrink-
swell crack structure is likely to have a deleterious effect on the in
situ seed bank and, therefore, on successful plant recruitment and
survival of the species in subsequent years (Meyer et al. 2005, p. 22).
Off-Road Vehicle Recreation
Energy development increases access to previously roadless areas,
which encourages ORV traffic to drive on nearby slopes that support
plant habitat. ORV use occurs on BLM lands in the general vicinity of
Phacelia submutica and has been recorded within occupied habitat at
seven occurrences (CNHP 2010a). The vehicles stray from designated
roads to climb hills for recreational purposes (Mayo 2008d, photo).
Substantial surface disturbance due to churning by ORV tires can alter
the unique soil structure required by this species, with the same
negative effects on the seed bank as described above.
Trampling
Trampling of the habitat by livestock and wildlife is documented at
14 of the 22 occurrences (CNHP 2010a, pp. 24-82). Substantial surface
disturbance due to heavy trampling increases soil compaction and
erosion and alters the microhabitat, such as the cracked soil surface,
the species requires.
Livestock-related impacts have resulted in the loss of similar
plant species in other locations. Lepidium papilliferum (slickspot
peppergrass) is a rare ephemeral annual desert plant in Idaho
(comparable to Phacelia submutica), which has highly specific soil
requirements and which depends on its seed bank. The slickspot
peppergrass population dropped from thousands of plants in 1995, to no
new plants after intensive trampling when the soil was wet and seeds
were germinating (Meyer et al. 2005, p. 22). The population has not
recovered, which is believed to be due to damage and burying of seeds
that prevented them from germinating. After 11 years of monitoring,
researchers have clear evidence that ``any form of soil disturbance is
likely to have a deleterious effect on the in situ seed bank,'' and
that all potential habitat for such a species (such as P. submutica)
should be managed as if it were currently occupied (Meyer et al. 2005,
p. 22).
Water Reservoirs
Two water reservoir projects known as Roan Creek and Sulphur Gulch
have been proposed in the past within occupied habitat of Phacelia
submutica. The potential reservoir locations would have impacted two
occurrences. Recently, both projects were again evaluated as potential
reservoirs to provide a water supply for in-stream flows for endangered
fishes in the Colorado River (Friedel 2004, p. 1; Grand River
Consulting Corporation 2009, p. 3). After evaluation of numerous
alternatives, the Sulphur Gulch and Roan Creek projects are no longer
being considered as a water supply for endangered fishes because more
practical sources were found (Bray and Drager 2008, pers. comm.; Grand
River Consulting Corporation 2009, pp. 1-5). The Roan Creek reservoir
project also was proposed by Chevron Shale Oil Company and Getty Oil
Exploration Company to be used for development of oil shale extraction
(Chevron-Getty 2002, pp. 2, 8), but the oil shale projects were not
developed. These potential reservoirs could permanently destroy plants
and their habitat by project construction and inundation. Because the
proposals have been withdrawn, these threats are not imminent; however,
the sites have been identified as potential reservoir locations that
could be developed within 20 years if warranted by increased demands
for water. Increased demands are likely, depending on the oil shale
market, urban development in Colorado, and less precipitation due to
climate change.
Summary of Factor A
We consider destruction, modification, and fragmentation of habitat
to be moderate threats to Phacelia submutica throughout its range, due
to ongoing development of oil and gas with associated pipelines,
construction of new road and utility ROWs, road widening, and
construction of access roads. P. submutica habitat also is threatened
by soil modification resulting from livestock trampling and ORV
tracking. These threats are of moderate magnitude because at least 14
of the 22 occurrences are being impacted to some degree by one or more
of the threats, and because the plants and their seed banks occur in
small, isolated patches that are easily destroyed by small-scale
disturbances. If these threats increase in frequency, severity, or
scope, the species is likely to become in danger of extinction within
the foreseeable future.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Activities resulting in overutilization of Phacelia submutica
plants for commercial, recreational, scientific, or educational
purposes are not known to exist. Therefore, we do not consider
overutilization for commercial, recreational, scientific, or
educational purposes to be a threat to the species now or in the
foreseeable future.

C. Disease or Predation

Disease or herbivory are not known to affect Phacelia submutica.
Therefore, we do not consider disease or predation

[[Page 45072]]

to be a threat to the species now or in the foreseeable future.

D. The Inadequacy of Existing Regulatory Mechanisms

Local Laws and Regulations
County ordinances or zoning are not known to affect Phacelia
submutica or its habitat. Therefore, we do not consider inadequacy of
existing local laws and regulations to be a threat to the species now
or in the foreseeable future.
State Laws and Regulations
No State regulations protect rare plant species in Colorado. The
CNAP has entered into agreements with BLM to help protect the Pyramid
Rock ACEC occurrence of Phacelia submutica by also managing it as a
designated State Natural Area that is monitored by volunteer stewards.
The Pyramid Rock occurrence has been adequately protected thus far, but
the management agreement can be terminated with 90-day written notice
by either party. Therefore, we have concluded that the State Natural
Area designation alone does not constitute a regulatory mechanism to
conserve P. submutica.
Federal Laws and Regulations
Bureau of Land Management
Candidate species are managed by BLM as sensitive species.
Sensitive species designations provide policies to be carried out with
the resources available, but they do not provide regulations to protect
this species from losing habitat and seed banks to energy development
projects. The BLM attempts to avoid disturbances that would adversely
affect sensitive species' viability or trend the species toward Federal
listing. This includes avoidance of suitable habitat if it can be
identified as such (BLM 2008c, pp. 8, 36; BLM 2008d, pp. 5-7). However,
the BLM policy of avoidance and minimization of threats to plants and
habitat may not adequately protect Phacelia submutica because the
plants can only be found for a few weeks during years when growing
conditions have been favorable (Burt and Spackman 1995, p. 8). Thus,
well-intentioned avoidance and minimization measures may not be
implemented if no plants are seen, even in areas where subsequent
timely surveys would likely demonstrate a persistent seed bank. As
opposed to listed species, biological assessments or consultation with
the Service are not required for BLM-designated sensitive species
during the authorization process for oil and gas use on Federal lands
(BLM 2008d, p. 33).
Section 365 of the Energy Policy Act of 2005 (42 U.S.C. 15801 et
seq.) establishes a Federal Permit Streamlining Pilot Project with the
intent to improve the efficiency of processing oil and gas use
authorizations on Federal lands. The two BLM pilot project offices for
Colorado are in the Colorado River Valley and Grand Junction Field
Offices, both of which manage Phacelia submutica habitat. Faster
processing of permits to drill increases the likelihood of ground
disturbance on P. submutica habitat because the plants are ephemeral
annuals that can only be found for about 6 weeks during favorable
years, and not all of the habitat has been surveyed. When the plants
are not present or previously documented, avoidance of the seed bank
depends on field assessments of habitat. As a result, seed banks and
habitat are increasingly likely to be disturbed or removed during the
process of approving locations for new energy development projects.
U.S. Forest Service
Phacelia submutica is currently on the sensitive species list for
the USFS, Region 2 (USFS 2009). The USFS manages 6.4 percent of the
habitat for P. submutica (Service 2011a, p. 9). Trampling by mule deer
and trespass cattle has damaged plants and habitat at two sites on the
Grand Mesa National Forest; ORVs have impacted another site (USFS 2010;
CNHP 2010a, pp. 24-82). Most of the habitat is protected from access by
steep badlands and canyons. The habitat is open to oil and gas leasing
with an NSO stipulation.
A Proposed Research Natural Area to protect the species on the
White River National Forest has not been formally established (Proctor
2010, pers. comm.). If established, protection would include
restrictions on ORV use, livestock grazing, and resource extraction.
Regulatory mechanisms on USFS lands do not protect the species, because
such restrictions are not in place, and the NSO stipulation can be
waived in some cases.
Summary of Factor D
We have determined that existing regulatory mechanisms do not
address the primary threats to P. submutica because the existing RMPs
do not provide protection from the threat of oil and gas development.
The one ACEC in place is not adequate to protect the species because it
includes only 4 percent of the habitat. Sensitive species designations
provide policies to be carried out with the resources available, but
they do not provide regulations to protect this species from losing
habitat and seed banks to energy development projects, cattle
trampling, or ORV traffic over the next 10 to 20 years.

E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence

Climate Change
Climate change is likely to affect Phacelia submutica because seed
germination, seed dormancy, and persistence of the seed bank are all
directly dependent on precipitation and temperature patterns (Levine et
al. 2008, p. 805). As described under Factor E for Ipomopsis polyantha,
climate modeling is not currently to the level that we can predict the
amount of temperature and precipitation change within the limited range
of P. submutica.
Future changes in the timing of and temperatures associated with
the first major spring rains each year may more strongly affect
germination and persistence of ephemeral annual plants than changes in
the amount of season-long rainfall (barring severe droughts) (Levine et
al. 2008, p. 805). Likewise, increasing environmental variance, such as
an unusually wet spring, might decrease extinction risk for rare desert
ephemeral plants, because they typically rely on extremely good years
to restock the persistent seed bank, while extremely bad years have
little impact (Meyer et al. 2006, p. 901). A persistent seed bank
enables the species to survive drought. However, extremely long
droughts resulting from climate change, with no good years for
replenishing the seed bank, would likely cause Phacelia submutica to
become endangered. Because the soil can remain bare of P. submutica
plants for several years, it is difficult to identify and protect the
seemingly unoccupied habitat that occurs in small, isolated patches
that are easily destroyed by small-scale disturbances, and can be
overlooked during habitat assessments. The longer the species remains
dormant, the less likely it is that we will know if an area is
occupied, reducing our ability to avoid impacts to the species and
protect it from becoming endangered.
We do not yet have information on the species' pollinator needs
sufficient to predict the effects of climate change on pollinator-plant
interactions for this species.
Summary of Factor E
While current climate change predictions are not reliable enough at
the local level for us to draw conclusions about its effects on P.
submutica, it is likely that there will be

[[Page 45073]]

drying trends in the future and the seeds will remain dormant for long
periods. This would make it increasingly difficult to detect occupied
habitat and avoid destruction of habitat, and more likely that the
species will become endangered. Because its seed bank is vital to the
survival of Phacelia submutica, the potential impacts of climate change
(described above) are likely to make the species more vulnerable to the
threats described under Factor A to an extent that the species may
become endangered within the foreseeable future.
Summary of Factors
The current range of Phacelia submutica is subject to human-caused
modifications from natural gas exploration and production with
associated expansion of pipelines, roads, and utilities; development
within the Westwide Energy Corridor; increased access to the habitat by
ORVs; soil and seed disturbance by livestock and wildlife (Factor A).
The main reason that the species is vulnerable to energy
development is that the plants' annual life cycle only lasts a few
weeks before they dry up and blow away, and they may not appear at all
for several years if growing conditions are not favorable. With such a
short life cycle and unpredictable emergence, occupied habitat may not
be recognized as such, so it may be inadvertently destroyed.
Protecting the seed bank in the soil depends on avoiding ground
disturbance of bare patches of clay soil where nothing appears to be
growing most of the time. The plants and their seed banks occur in
small, isolated patches that are easily destroyed by even small-scale
disturbances. The species' small geographic range, highly specific soil
and germination requirements, limited seed dispersal, fragmented
habitat, prolonged seed dormancy, and potential seed bank depletion by
prolonged drought (Factor E) make P. submutica vulnerable to the
threats in Factor A to an extent that the species may become endangered
within the foreseeable future, depending primarily on the rate of
future energy development. The plants do not disperse seeds beyond the
existing patches of unique soil that are separated from one another by
a few yards or several miles. Any loss of occupied habitat will be a
permanent loss for the foreseeable future, and cause a decline in the
status of the species.

Determination

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to Ipomopsis polyantha, Penstemon debilis, and Phacelia submutica.

Ipomopsis polyantha

We find that the present and threatened destruction, modification,
or curtailment of Ipomopsis polyantha habitat is a threat to the
species' continued existence. Ongoing and planned commercial,
municipal, and residential development; associated road and utility
improvements and maintenance; and competition from introduced roadside
grasses (as discussed under Factor A above) pose a significant threat
to the species. The resulting modifications of the species' habitat
will likely relegate the plants to small, fragmented portions of
highway ROWs and a few small, lightly used, private pastures, within 5
to 10 years, depending on the real estate market. At that point the
species would no longer be resilient or viable, indicating that the
species is in danger of extinction across its entire range.
Ipomopsis polyantha also is threatened by concentrated livestock
trampling of plants and soil and some herbivory (as discussed under
Factor C). Livestock grazing may decrease in the future, but mowing and
landscaping is likely to increase with higher density development
within the next few years. Predation is an ongoing threat of moderate
magnitude and severity, which, combined with the threat of habitat
modification under Factor A, could cause the species to become extinct
within the foreseeable future.
The existing regulatory mechanisms do not address the threats to
the species or its habitat. The absence of regulatory mechanisms
exacerbates the threats discussed under Factor A.
The natural and human-caused factors of specific soil and
germination requirements, fragmented habitat, effects of drought and
climate change, and lack of proven methods for propagation and
reintroduction (as discussed under Factor E) present an ongoing and
moderate degree of threat to Ipomopsis polyantha across the entire
range of the species. This factor alone is not likely to cause the
species to become extinct, but it impacts the species' ability to
withstand and recover from the threats discussed under Factors A and C.
On the basis of the best available information, we are listing
Ipomopsis polyantha as an endangered species. Endangered status
reflects the vulnerability of this species to threat factors negatively
affecting it and its limited and restricted habitat. This species is
beyond threatened status, or beyond the point of being likely to become
an endangered species within the foreseeable future. Ongoing threats to
the species and its habitat (discussed under Factors A and C) are such
that it is currently in danger of extinction throughout all of its
range, meeting the definition of an endangered species as defined in
the Act. We have determined that I. polyantha is in danger of
extinction throughout all of its range.

Penstemon debilis

Penstemon debilis is threatened with destruction and modification
of its habitat due to ongoing and foreseeable threats that include oil
and gas development, oil shale extraction and mine reclamation, road
construction and maintenance, and vehicle traffic throughout its
habitat (as discussed under Factor A above). These threats are of high
magnitude across more than half of the species' limited range. We
believe that the effects of these threats are likely to cause Penstemon
debilis to become an endangered species within the foreseeable future.
The existing regulatory mechanisms do not address the threats to
the species or its habitat. The absence of regulatory mechanisms
exacerbates the threats discussed under Factor A. Local or State
regulations of plant species' habitats are nonexistent. Existing
Federal regulatory mechanisms are only partially effective at
ameliorating threats to plants and habitat (as discussed under Factor
A). Stipulations for Federal protection of habitat are planned but not
yet implemented (as discussed under Factor A). Private landowner
agreements with the State currently protect 69 percent of the habitat,
but their continuation is not guaranteed.
The natural and human-caused factors of extremely low numbers of
plants and a highly restricted soil substrate and geographic range,
fragmented habitat and low genetic diversity, effects of drought and
climate change, and lack of proven methods for propagation and
reintroduction (as discussed under Factor E) present an ongoing and
moderate threat to Penstemon debilis across the entire range of the
species. These threats in themselves are not likely to cause the
species to become endangered, but they affect the species' ability to
withstand and recover from the effects of the threats described under
Factor A, and thus make Penstemon debilis likely to become endangered
within the foreseeable future.
On the basis of the best available information, we are listing
Penstemon debilis as a threatened species. Threatened status reflects
the

[[Page 45074]]

vulnerability of this species to factors that negatively affect the
species and its limited and restricted habitat. While not in immediate
danger of extinction, P. debilis is likely to become an endangered
species within the foreseeable future, depending on whether energy
development escalates, draft management plans are implemented, and
current conservation agreements are continued.

Phacelia submutica

The destruction, modification, and fragmentation of habitat pose
moderate threats to Phacelia submutica throughout its range. Natural
gas production with associated expansion of pipelines, roads, and
utilities; development within the Westwide Energy Corridor; increased
access to the habitat by ORVs; and soil and seed disturbance by
livestock, wildlife and ORVs all threaten the species' habitat (as
discussed under Factor A). These ongoing and potential threats are
likely to cause P. submutica to become endangered within the
foreseeable future, depending mainly on the rate of energy development.
The existing regulatory mechanisms do not address the threats to
the species or its habitat. The absence of regulatory mechanisms
exacerbates the threats discussed under Factor A. Local or State
regulations provide no protection for the species and its habitat.
Existing Federal regulatory mechanisms are only partially effective at
ameliorating threats to plants and their habitat (as discussed under
Factor A).
Other natural or manmade factors affecting the continued existence
of Phacelia submutica include the species' small geographic range,
highly specific soil and germination requirements, limited seed
dispersal, fragmented habitat, prolonged seed dormancy, and potential
seed bank depletion by prolonged drought (as discussed under Factor E).
These factors make the species vulnerable to climate change and to the
threats under Factor A (as described above), to an extent that the
species may become endangered within the foreseeable future, depending
primarily on the rate of future energy development.
On the basis of the best available information, we are listing
Phacelia submutica as a threatened species. Threatened status reflects
the vulnerability of this species to factors that negatively affect the
species and its limited and restricted habitat. While not in immediate
danger of extinction, P. submutica is likely to become an endangered
species within the foreseeable future if habitat is lost and existing
seed banks cannot expand to maintain the species' range.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection measures required of Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Federal agency actions within the habitat of these three species
that may require conference or consultation or both as described in the
preceding paragraph include the following:
Management, leasing, permitting, and other actions that
result in landscape altering activities on Federal lands administered
by the BLM and USFS;
Issuance of section 404 Clean Water Act (33 U.S.C. 1251 et
seq.) permits by the U.S. Army Corps of Engineers;
Construction and management of gas pipeline and power line
ROWs by the Federal Energy Regulatory Commission and BLM;
Construction and maintenance of roads or highways by the
Federal Highway Administration; and
Provision of Federal funds to State and private entities
through Federal programs such as CDOT highway construction or
improvement projects, Housing and Urban Development Tax Credit
Assistance Program, the Service's Landowner Incentive Program, and the
NRCS.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
All prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR
17.61, apply. These prohibitions, in part, make it illegal for any
person subject to the jurisdiction of the United States to import or
export, transport in interstate or foreign commerce in the course of a
commercial activity, sell or offer for sale in interstate or foreign
commerce, or remove and reduce the species to possession from areas
under Federal jurisdiction. In addition, for plants listed as
endangered, the Act prohibits the malicious damage or destruction on
areas under Federal jurisdiction and the removal, cutting, digging up,
or damaging or destroying of such plants in knowing violation of any
State law or regulation, including State criminal trespass law. It also
is unlawful to violate any regulation pertaining to plant species
listed as threatened or endangered (section 9(a)(2)(E) of the Act).
Certain exceptions to the prohibitions apply to agents of the Service
and State conservation agencies. No State regulations protect rare
plant species in Colorado.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened plant species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.62 for endangered plants, and at 17.72 for threatened plants. With
regard to endangered plants, a permit must be issued for the following
purposes: for scientific purposes or to enhance the propagation or
survival of the species.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect

[[Page 45075]]

subsequently listed species or designated critical habitat.

Required Determinations

Paperwork Reduction Act of 1995

This rule does not contain any new collections of information that
require approval by Office of Management and Budget under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not
impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid Office
of Management and Budget control number.

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental
Impact Statements as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations adopted under section 4(a) of
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).

References Cited

A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the Field
Supervisor, Western Colorado Ecological Services Field Office (see
ADDRESSES section).

Authors

The primary authors of this document are staff members of the
Western Colorado Ecological Services Field Office, U.S. Fish and
Wildlife Service (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec. 17.12(h) by adding entries for Ipomopsis polyantha,
Penstemon debilis, and Phacelia submutica under FLOWERING PLANTS in the
List of Endangered and Threatened Plants, to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Ipomopsis polyantha.............. Pagosa skyrocket.... U.S.A (CO)......... Polemoniaceae...... E ........... NA NA

* * * * * * *
Penstemon debilis................ Parachute U.S.A. (CO)........ Plantaginaceae..... T ........... NA NA
beardtongue.

* * * * * * *
Phacelia submutica............... DeBeque phacelia.... U.S.A. (CO)........ Hydrophyllaceae.... T ........... NA NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

Dated: July 5, 2011.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2011-18429 Filed 7-26-11; 8:45 am]
BILLING CODE 4310-55-P